Teddy Taylor: As the Northern Ireland grammar schools have provided unique opportunities for able children from disadvantaged areas to break through the class barriers, and as Northern Ireland has achieved hugely successful education results, why cannot the Government leave the system alone? Does he not accept that abolishing the selective tests will basically undermine the whole principle on which the grammar schools have been created and have achieved so much for the people of Northern Ireland?

Seamus Mallon: Does the Secretary of State agree that the single greatest obstacle preventing criminality from being dealt with is the inability to protect people who want to give evidence but cannot because of the paramilitary might that surrounds them? Does he agree that while other things are not possible at present, one thing is possible and should be required of every political party that will be involved in any future negotiations? Should not all those parties now join the Policing Board, so that the police service can protect the only people who can end criminality—the people on the ground?

Jeffrey M Donaldson: The Secretary of State will know of the plight of innocent victims of terrorist violence, many of whom sense that during the peace process they have not been given enough recognition and support. He will also recall that both during and since the negotiations, the Democratic Unionist party has argued for the establishment of a victims' commission to champion the cause and the rights of victims of terrorist violence. Does he now recognise the merits of that idea?

Paul Murphy: Yes, I do. I know that the hon. Gentleman and his party, along with other parties and organisations, individuals and groups in Northern Ireland, have investigated the possibility of such a commission, and I see great merit in it. I hope to be able to make a statement to the House shortly. I also agree with the hon. Gentleman that the work done by victims' groups throughout Northern Ireland is enormously important in bringing about reconciliation. I visited the Wave trauma centre not long ago, and was deeply impressed by what I saw.

David Lidington: Does the Secretary of State agree that if the republican movement wants democrats of any persuasion or background to start taking it seriously, it might begin by dropping its incredible claim to be able to decide whether or not a particular action is a crime, and then advise republicans—in undiluted language rather than weasel words—that if they have evidence connected with criminal activity, and in particular with the brutal murder that took place in Belfast the other week, they should go to the police and give the Police Service in Northern Ireland whatever evidence they can provide so that the killers and their accomplices can be detected, arrested and brought to trial?

Eddie McGrady: Does the Secretary of State agree with the current expression of the position in Northern Ireland—that it is leading to political stagnation? He indicated in an earlier answer that he will seek to give greater accountability to the people of Northern Ireland. Has he examined carefully the proposals made to him and to the Irish Government by the Social Democratic and Labour party? Has he discussed them with other parties and indeed have other parties made submissions? In the meantime, political accountability is missing. Will he abide by the answer he gave on "Any Questions", when he said that it was not his business to impose legislation on Northern Ireland against the will of the people? Yet that is the very thing that he is doing with the legislation on higher education and water charges. He knows the will of the people of Northern Ireland through the decision of the Northern Ireland Grand Committee, which defeated the Government motion on higher education.

Ian Pearson: I do not know personally what the IRA is doing with the proceeds of the Northern bank raid, but 45 detectives are working on the case with their counterparts in the Garda Siochana, trying to track down those responsible. It is clear from the last Independent Monitoring Commission report that the provisional IRA continues to maintain a capability, and that so-called punishment beatings are still being carried out by both the IRA and loyalist organisations. All of that is unacceptable to the Government, and we are making every effort to deal with those problems effectively.

Tony Blair: As I have just explained, the reason why we have brought forward these alternative proposals is that we believe that we must act on the House of Lords judgment. Yes, of course it is correct that I and other Government Members supported the existing legislation. That is why we fought the matter in the House of Lords. However, in the end the issue, as I understand it from our discussion last Friday, is one of principle. The Leader of the Opposition is opposed to the new control orders altogether. That is my understanding of his position.

Tony Blair: I really do not accept that identity cards are the same type of issue at all. They are a necessary, sensible measure in the modern world, and I am sorry that the right hon. Gentleman and the Conservative party are against them. In respect of terrorism, however—let us be very clear—were there to be a serious terrorist act in this country and afterwards it was thought that we had not taken the measures necessary, believe me, no one would be talking about civil liberties; they would be talking about why we had not done more to protect the security of this country. I agree that these powers should be taken only in the most exceptional circumstances, but I conclude on this point: I do not believe that the terrorism we face today is the same as the IRA terrorism of, hopefully, the past. I think that these people would kill thousands of our citizens if they could. I think that this is terrorism without limit, and that in the use of suicide terrorists, it is different, so in those circumstances, for that limited number of cases, my best judgment is that considerations of national security have to come before civil liberties, no matter how important those civil liberties are.

Tony Blair: We obviously want to ensure that we get a diplomatic resolution to the situation regarding Iran, as President Bush made clear over the past few days. There are genuine concerns, which I am sure that the hon. Gentleman shares, about Iran in relation to the development of its nuclear capability, its sponsorship of terrorism and human rights issues. All that is right, but it is possible, through the engagement by Britain, France and Germany that is happening, and is backed by the United States, to get a diplomatic solution, so that is what we are working for. On Iraq, I would simply point out that the appalling dictator Saddam Hussein has, of course, been removed from Iraq only as a result of the action of coalition forces, including British and American forces.

Tom Harris: Will the Prime Minister join me in paying tribute to a charity based in my constituency, Glasgow the Caring City, led by Rev. Neil Galbraith, which was one of the first, if not the first, charity to mobilise aid for the areas most affected by the Boxing day tsunami? Yet despite our record of delivery in the developing world, The Caring City has not been able to access any funds raised by the Disasters Emergency Committee. Does the Prime Minister agree that smaller charities, as well as large ones, should be able to get some of the money raised by the generosity of the British people?

Ruth Kelly: I would like to make a statement about the reform of education for 14 to 19-year-olds.
	I would like to start by putting on record my thanks to Sir Mike Tomlinson and his working group members for their time and effort. They issued us with a challenge: how to fulfil the needs and aspirations of every young person. Today, I shall set out how we will meet that challenge.
	We have made much progress in raising standards in our schools. As a result of smaller class sizes and the literacy and numeracy strategy, we have the best ever primary school results. As a result of the continued record investment and reform in our secondary schools, we also have the best ever GCSE and A-level results. There are more young people in apprenticeships than ever before, but we now need to go much further.
	Historically, our education system has produced a high-achieving elite while failing the majority. In today's global economy, in which our national competitiveness increasingly depends on the skills of each and every person, we cannot afford so much talent to go to waste. We cannot afford to let intellectual snobbery leave us with a second-class, second-best vocational education system.
	I agree with Sir Mike's analysis: there are historic weaknesses in our education system which we have to tackle. Too many young people are unattractive to employers, deficient in the basics of English and maths, unprepared for further study and unable to demonstrate their true potential. I want all that to change.
	I want to transform the opportunities available to young people. I want the same emphasis on vocational education as we currently have on academic. I want all young people to leave school competent in the three Rs. I want every pupils stretched to their full potential. All teenagers should have the opportunity of a place in education, training or on an apprenticeship. Education maintenance allowances are already helping overcome financial barriers. I want to end the scandal of our low staying-on rate at 17, increasing it from 75 per cent. to at least 90 per cent. over the next decade—effectively making the current school-leaving age a thing of the past.
	There are some who argue that to transform opportunities for our children, we should scrap the current system of GCSEs and A-levels. I do not agree. We will not transform opportunities by abolishing what is good, what works and what is recognised by employers, universities, pupils and parents. We must build on what is good in the system, and reform and replace what is not working.
	In my reforms, there will be a relentless focus on the basics. It is totally unacceptable that at least 70,000 16-year-olds a year are weak in the basics of reading, writing and arithmetic. I want and expect much more. I want every young person to be competent in English and maths before leaving school or college—to be able, for example, to work out their family budget or write a clear description for an insurance claim.
	I am therefore toughening GCSE so that, in future, no one will be able to get a higher grade in English or maths without mastering the basics. I shall free up the curriculum—starting at age 11—to make space for extra help and support in English and maths to ensure that children who fall behind can catch up. I shall introduce a new diploma to recognise the achievement of those who achieve five good GCSEs or equivalent, including English and maths.
	We must also transform vocational opportunities. Our programme of apprenticeships has made an excellent start in this. We must build on that and go further. We need qualified health care professionals, software designers, plumbers, graphic designers, engineers and much more—all competent in the basics, all with specialised skills and all ready to acquire more skills as they progress. To achieve that, we need specialised qualifications that include both practical skills and academic content, with English and maths at their core as well as relevant GCSEs and A-levels. We need all universities to value those qualifications, and we need employers actively to seek out students who hold them.
	The key is to give employers a real say. To do so, I shall introduce new specialised diplomas and ask employers, via their sector skills councils, to sign off their content. Specialised diplomas will be made available in 14 broad subject areas—reflecting key sectors of the economy—at levels 1, 2 and 3. They will replace the current system of around 3,500 separate qualifications. The first four employer-designed diplomas—in information and communication technology, engineering, health and social care, and the creative and media industries—will be available in every local area by 2008. I am pleased to tell the House that major employers such as IBM, Hewlett Packard, Rolls-Royce, Nissan, the national health service and the BBC have already agreed to work with us on their design. A further four specialised diplomas will follow in 2010, and an entitlement to all 14 will be in place in every local area by 2015.
	Employers will have never been so involved in designing the courses studied by our young people, guaranteeing that those qualifications add real value to young people's employment prospects. We will also involve universities in the design of level-3 diplomas to ensure that the young people who take them are ready for higher education.
	We must provide real opportunities for young people to be stretched to achieve their full potential. I expect all diplomas and A-levels to offer optional, more challenging questions for the brightest students. We will also pilot other measures to add stretch, including an extended project, as suggested by Sir Mike, and the use of HE modules in schools and colleges.
	Our top universities have told us that they need more information to differentiate among top achievers, especially for popular courses. I shall act immediately to make A-level unit results available to universities before they make offers of places. In the longer term, moving to post-qualification application to universities will mean that final A-level results and unit grades are available for all candidates.
	There are those who argue that we should challenge our A-level students further, by demanding breadth in the curriculum as well as stretch. Some schools in the state sector do that already by offering the international baccalaureate, often alongside A-levels. I understand those arguments, but there is no clear consensus among pupils, parents, employers or universities on whether or how it should be done. I also believe that so soon after the introduction of curriculum 2000, stability is important. I will therefore work with employers and universities to see whether we can identify what, if anything, would add value to A-levels, and I shall review progress in 2008.
	Our education system has not done enough for those most at risk of dropping out of the system, resulting in pupils and society paying a high price. I believe that the key to re-motivating those teenagers is to broaden the range of places in which they can learn. I shall enable pupils to mix school with college and employer-based learning to suit their needs. I shall introduce a new programme for 14 to 16-year-olds to provide intensive support to allow learning at work, based on our existing and successful entry to employment programme, which is currently available only to those over the age of 16.
	These measures are a radical package, which we will introduce with care, and schools, colleges, employers and other local partners will need to work together to deliver it, each contributing their own expertise for the benefit of all pupils in the area. In doing so, we will move from a system of comprehensive schools to a genuinely comprehensive system of education in each local area.
	I believe that every child has equal worth; that every child has potential; that the job of the education system is to develop and extend that potential; and that, in doing so, education must enable all children and teenagers to achieve and prepare for life and work, equipping them with the skills that employers need.
	There are many ways to achieve and many ways to prepare young people, all of which have dignity and value and all of which deserve respect. Those are my values, the values of this Government and, I believe, values that the whole country will share. This White Paper embraces those values. I commend it to the House.

Tim Collins: I thank the Secretary of State for allowing me to see a copy of her statement half an hour in advance. I would thank her for the chance to see a copy of the White Paper in advance, but sadly it did not arrive.
	Let us start on the points where there is consensus between us. We are agreed that A-levels and GCSEs should remain, but that they should be much more challenging for the most able. We are agreed that vocational education must be massively expanded and dramatically raised in status. We are agreed that no child who is able to learn to read and write should ever leave school without those fundamental skills. We are agreed that participation rates among older teenagers must rise at least to the levels seen in other countries. We are agreed, in short, that despite all the hard work of teachers, schools, pupils and parents, the current education system in Britain has been letting down far too many for far too long, right across the spectrum from the most to the least academic.
	We are also agreed, I am sure, that Mike Tomlinson and his team should be thanked. We would go further. We do not just thank him and his team; we congratulate him on a creative, important and imaginative report. Sadly, it seems that the Secretary of State came not to praise the Tomlinson report, but to bury it. Not one diploma for all, but at least 15 different diplomas for different categories of children; no new challenging qualification in literacy and numeracy; and no integration of academic and vocational qualifications. There is not much left of Tomlinson, is there?
	The Secretary of State told the Sunday papers categorically that she would make exams harder. Why, then, today did she just say that she would see "if we can identify what, if anything, would add value to A-levels, and I will review progress in 2008"? There was no commitment; after eight years, all we get is a promise to look at it all again in another three years—all talk, yet again.
	Exams have not been getting harder in the last eight years, have they? The former chief examiner Tony Whelpton said:
	"Yes, it is easier to get a good result at A level and GCSE than it used to be."
	Will the Secretary of State scrap the AS-level and the option to resit A-level modules over and over again? She has given the impression that she will get the present Qualifications and Curriculum Authority to make exams more challenging, but these are the very people who have allowed A-grades at GCSE to be handed out to candidates with just 45 per cent. of the marks and permitted a pass mark to be set at just 17 per cent. Will she confirm that she still has confidence in the very institutions that have debased our exam system? If she has, why should anyone believe that standards will get any higher at all?
	The Secretary of State says that she wants to raise the effective school-leaving age to 18. Let us examine whether that is a stunt or a real pledge. Is she undertaking to change the formal, legal school-leaving age set down by statute—yes or no? Teenage truancy has risen by a third since 1997. If she cannot keep 14 and 15-year-olds in school, why should anyone believe that she will be able to keep 17 and 18-year-olds there?
	The Secretary of State said that she wants to improve basic literacy and numeracy, but her statement on this is somewhat unclear. Is she accepting or rejecting the specific Tomlinson recommendation for a new and entirely separate assessment in literacy, numeracy and ICT that every child would have to pass before getting a diploma? Will she at last embrace the academic research from this country and around the world, which demonstrates unequivocally that by far the most effective way to spread literacy is to teach phonics?
	The Secretary of State claimed that literacy and numeracy have been improving under Labour. However, the Independent Statistics Commission said only last week that
	"the improvement in KS2 test scores between 1995 and 2000 substantially overstates the improvement in standards in English primary schools over that period . . . Government Departments have usually failed to mention any caveats . . . in their public comments."
	The Secretary of State did not mention any caveats in her public comments this afternoon.
	The National Audit Office reported two months ago that the number of adults without adequate literacy and numeracy skills is growing by 100,000 a year. The CBI says that one in three companies has to provide remedial training for school leavers who have not mastered reading, writing and arithmetic. In 2003, the CBI survey of 500 companies showed that 34 per cent. were not satisfied with the numeracy and literacy standards of 16-year-olds. In 2004, that figure rose to 37 per cent. Even someone who has learned maths under this Government knows that 37 per cent. is higher than 34 per cent. It is getting worse, not better, isn't it?
	The biggest disappointment today is that the Secretary of State has not accepted Tomlinson's central recommendation for an overarching diploma, embracing both academic and vocational qualifications, that every school leaver would be expected to get in at least some form.
	The Secretary of State and I agree that A-levels and GCSEs should remain clear and permanent parts of the system. Last year, there were cross-party talks on this issue and it was clear that agreement could have been reached that results at A-level and GCSE would be printed loud and clear on the front of the diploma. That would have preserved the integrity of those exams while still enabling other achievements in vocational qualifications, longer-term projects and basic skills to be properly recognised. Why instead—[Interruption.]

Tim Collins: Why instead has the Secretary of State chosen to set in stone the age-old British divide between academic and vocational qualifications that has bedevilled our society and economy for 150 years? Does she not realise that in the 21st century every child, perhaps especially the brightest, will need vocational as well as academic qualifications? How can she possibly expect to achieve parity of esteem if some young people obtain A-levels and others a diploma, and there is no overlap between the two?
	Why did the Secretary of State choose to throw away the chance for a consensus on the diploma? Why did she not build on the extensive efforts that Sir Mike Tomlinson himself made to try to reach very broad agreement? Why, when her predecessors issued invitations for discussions with other parties, did she not do the same? Of course, the teaching unions would not be happy with the view that both she and I take over A-levels, but they would have been a lot happier than they are today if she had delivered an overarching diploma, would not they?
	The Secretary of State chose to listen to members of the No. 10 policy unit rather than to her Department or to outside advice. She has thrown away the chance to get substantial agreement across party and the education sector. She will not now be remembered as a great reformer. This was her first big test. She has flunked it.

Ruth Kelly: I found the hon. Gentleman's reply most entertaining, and his new-found enthusiasm for vocational education and training and a diploma a little surprising. But it is hard to take the hon. Gentleman seriously when his priorities for the state education system are to use £1 billion of taxpayer's money to subsidise the private education of an elite few—a sum equivalent to cutting more than 24,000 teachers and more than 22,000 classroom assistants—and when his proposals for driving up standards in schools are to slash the number of Ofsted inspections, so that a child could go the whole way through secondary school without that school being inspected.
	The hon. Gentleman's new-found conversion to a diploma just reminds me how opportunistic the Conservative party really is. Is his new proposal for a diploma also based on a return to selection at 11, or a return to selection at five, and a grammar school in every town? Far from agreeing that every child should be stretched to their full potential, he is preparing to cast us back to the past, when his party argued that standards are maintained only if a majority of children fail and a minority succeed. Far from transforming vocational education and training, he and his party would relegate vocational education to the second-class, second-best training that it was under their leadership. In 1997, there were 75,000 apprenticeships; today there are more than 250,000.
	The hon. Gentleman accuses the Government of not raising standards in primary schools. Let me tell the House what we have achieved in primary education. Everyone agrees that the increase in standards since 1998 has been dramatic. Even David Bell, the chief inspector, in his recent Ofsted report said that there have been significant improvements in literacy and numeracy standards since the introduction of the national strategies. In literacy, English 10-year-olds were the third most able readers out of 35 countries in recent international assessments, and between 1995 and 2005 standards in maths have risen faster than those in any other country. We have made progress. We have world-class standards in primary schools and record results in GCSEs and A-levels, but we have to go further. We must ensure that there is no cap on aspiration; no limit to a child's potential.
	The hon. Gentleman asks whether we will raise the school-leaving age to 18. The answer clearly is no. We want every child to want to stay in learning until they are 18 or 19 years old, because they have the chance, for once, to learn in a way that motivates them, in the place that motivates them, with real qualifications that have real currency with their parents, employers and our universities, including our top universities. If we manage to do that, we will really, once and for all, have bridged the vocational-academic divide.
	The hon. Gentleman asks whether we have accepted the Tomlinson proposals on English and maths and on functional literacy and numeracy. Yes, we have, and we have gone much further. We have made it a condition not just of getting the diploma that children achieve functional literacy and numeracy, but that they will continue from the age of 11 to be given real stretch, and also space for catch-up in English and maths, until they reach the required standard. Our new proposals for the GCSE diploma will have English and maths at their heart. We will also change the league tables to ensure that English and maths are a component of their five A to C grades. We are toughening English and maths to ensure that children who achieve high grades have a real grasp of literacy and numeracy.
	I am glad that the hon. Gentleman welcomes our proposals, because this is a once-in-a-generation chance to transform standards and increase opportunities. The proposals provide, not just at GCSE, a much greater focus on the basics, but real stretch, in vocational as well as academic subjects. We will continue to keep that under review to see how much stretch we can provide, offering additional extension papers at A-level, offering the opportunity to all children to study HE modules at school, and introducing the extended project recommended by Sir Mike Tomlinson. We will see if we need to go further by looking at breadth in the curriculum as well as stretch.
	The proposals are a radical reform that should be welcomed across the political spectrum. We have done a lot, but there is a lot more to do. I want a society in which people with ambition are not thought to be getting above themselves, and in which children from all backgrounds have high aspirations. I commend the proposals to the House.

Phil Willis: I thank the Secretary of State for the courtesy of providing an advance copy of her statement today.
	I always try to begin on occasions such as this by welcoming something in the statement, but to be perfectly honest that has been quite difficult today. However, Liberal Democrats welcome the move to post-qualification applications to university. When does the Secretary of State expect to introduce that, because it needs to be quick, and the universities must not stand in the way? Tomlinson was clear that we should also be raising the bar in terms of literacy, numeracy and ICT for post-16-year-olds. Will that be included?
	We also welcome the emphasis on maths and English, a commitment on which all would agree. Does the Secretary of State agree that she must now abandon the league tables, which concentrate on five A to C grades, and instead, any information on student performance at 16 from the Government should show whether students have achieved a level 2 in English, maths and ICT as a prerequisite, and we should abandon the idea of getting a GNVQ, building up four equivalent GCSEs and including that in the Government's success targets?
	Will the Secretary of State explain what she means by a genuine comprehensive system of education in every area? Does that mean that there will be no comprehensive schools, but a combination of other schools that make up a comprehensive package, or does it mean abandoning grammar and other schools as well?
	From the outset, we have supported the Government's fundamental desire to increase the vocational offer, to extend the time that students spend in education and training and to make demands on our brighter students. We are with the Government on that. Indeed, Mike Tomlinson recommended all those things in his report. However, it went one step further. For the first time in my professional life—indeed, in my lifetime—it brought together the academic and vocational strands. The Government appear to have abandoned that fundamental principle at the heart of Mike Tomlinson's proposals.
	There has been huge consensus about the Tomlinson proposals. When the only major figure who stands against them is the former chief inspector of schools, Chris Woodhead, we know that Tomlinson must be right. However, instead of supporting the spirit of Tomlinson, the Secretary of State has cherry-picked the proposals and thus undermined their integrity. The Chancellor of the Duchy of Lancaster said on 12 January on "Today":
	"New Labour is best when it is radical."
	If today's statement reflects what he meant by that, God help us, because it represents not radicalism but reaction.
	Does not the Secretary of State realise that continuing to separate GCSEs and A-levels from the vocational offer perpetuates the very division that Tomlinson hoped to bridge? How does she intend to create parity of esteem between academic and vocational programmes now that the diploma in its entirety has been rejected? How will she encourage academically able young people to take up vocational options when she has effectively described the vocational diploma—

Phil Willis: The hon. Gentleman is right. How will the Secretary of State encourage students to take up the diplomas when she effectively described them as for the disaffected and academically less able?
	Given that the proposals are to cover all young people in the 14 to 19 age group, how will they affect the NEET—not in education, employment or training—group or the 15 per cent. of 16 to 18-year-olds who are in work but not in training? Where do part-time learners fit into the proposals? They were not mentioned once in the statement. What proposals does the Secretary of State have for extending a statutory right to time off for work to 16 to 19-year-olds? Without that, her promise of extending education to the age of 19 is an empty gesture.
	Where are the funding proposals? Those are of fundamental interest to schools and colleges. I asked the Secretary of State in October—

Ruth Kelly: The hon. Gentleman has asked me many questions, which I shall do my best to answer in the time available. We intend to introduce post-qualification assessment by 2010. We are raising the bar on literacy and numeracy, which are a condition of attaining a specialised diploma or a GCSE diploma. The diplomas will have to include English and maths, and it will not be possible to progress to level 3 without literacy and numeracy. I assure him that we shall change the league table to include English and maths. That is a key component of our proposals.
	The hon. Gentleman asked what a truly comprehensive system would look like. I envisage schools working together in networks with colleges and employers to deliver what every child needs to meet their requirements so that they can learn in a way that suits their motivations, taps their aptitudes and enables them to develop to their full potential.
	The hon. Gentleman said that there was consensus about abolishing GCSEs and A-levels. That is not what teachers, parents and children in school tell me. He asked how we could break down the academic/vocational divide. Vocational, specialised lines of learning will include A-levels and GCSEs when relevant, and practical subjects taught in practical ways, so that children can learn in a way that motivates them. They will provide qualifications with genuine currency that employers and universities respect, just as A-levels and GCSEs are currently respected. If qualifications are genuinely recognised and valued in their own right, because we value skilled technicians, software designers and engineers, that is the way to achieve parity of esteem.
	The hon. Gentleman referred to my use of the word "disaffected". He misunderstood my proposals. There will be a new route for people who are at risk of dropping out. It goes way beyond the Tomlinson recommendations. We propose a new route for those who, at 14, are at risk of disengaging from the system. It is based on our current entry to employment route for over-16s. That will be extended to 14 to 16-year-olds so that they can spend up to two days a week learning in the workplace as well as the classroom. They can then come back to learning after doing their level 1 or level 2 diploma. That is a radical departure from the current system, and it will extend genuine benefits to all our pupils.

Barry Sheerman: The statement is much better than many of us anticipated until a short time ago. My right hon. Friend knows that many of us would have preferred Tomlinson, the whole Tomlinson and nothing but   Tomlinson, but we are all realists, and there is much of Tomlinson in her proposals.
	Let me clear up a minor point. Tomlinson never advocated the abolition of GCSEs and A-levels as a requirement for introducing a diploma. Page 33 of the report specifically states that GCSEs and A-levels are compatible with a radical change.
	My right hon. Friend knows that most of us hold dear the prospect of sorting out the academic and vocational divide once and for all. Much in the statement deals with that. I disagree with her about one thing. There is a consensus that I have not previously experienced on the need to sort out the 14 to 19 situation, and we have a unique opportunity to do that. I therefore hope that she will listen to comments about the White Paper and ensure that we get it absolutely right and thus challenge the aspirations and futures of our young people.

Helen Southworth: Great Sankey high school in my constituency, a specialist engineering college, and the employers and trade unions working with it are keen to see a focus on engineering. Will my right hon. Friend work with universities to ensure that they recognise the importance of the subject? We need students at every level to contribute to our society and community, so that we can really succeed in engineering.

Sydney Chapman: I listened carefully to the statement. Near the beginning, the right hon. Lady said unequivocally that our education system had been failing the majority. Does she really believe that? If so, it is an appalling indictment of her predecessors and, perhaps, of those who work in the system, including my daughter. Surely the right hon. Lady should have said that the education system had been failing too many pupils, and addressed herself to that problem rather than trying to make it embrace the vast majority.

Ruth Kelly: Yes, I do. My hon. Friend is right to draw attention to the Scottish experience, and Wales has also had an interesting experience in this regard. We must learn from what works; but it is just as important for us to work with employers and the higher education sector to establish whether we can add value to our existing A-level system. It is clear to me, and there is a clear consensus, that we must add opportunities for stretch—there are children who could do more than they are doing now—but there may also be opportunities for breadth, which is why we are piloting the extended project proposed by Sir Mike Tomlinson. I will work with HE and employers to discover whether they would like more stretch than the current system offers.

Anne Campbell: Cambridge is one of the universities that has called for greater discrimination between those students getting top A-level grades. Their wish will not be completely satisfied by making A-level unit results available to universities before they make their offers. Can my right hon. Friend outline some of the measures that she will take to ensure that there is greater discrimination, particularly between those students who are getting three As at A-level?

Ruth Kelly: I agree that we need to motivate more students as a matter of urgency, which is why we have worked with the science community to review the science curriculum at key stage 4. Those changes will be in place by 2006, so we have recognised the urgent need to get more students to be motivated by science both in key stage 3 and in key stage 4 and to continue with it. We are taking science seriously. As a result, 80 per cent. of students will continue to take at least two science GCSEs and we will see more students continuing to pursue science as a career option after they have done their GCSEs.

Ruth Kelly: Of course, at that point, the vice-chancellor did not have the opportunity to study these proposals and he did not know that the new specialised diplomas will include A-levels and GCSEs where appropriate. An engineering diploma, for example, could include A-level maths or an advanced optional paper at the end of A-level maths, where a student can show their potential. If we design these advanced level diplomas in specialised subjects together with HE, for the first time, HE will have a real say in what pupils learn. As a result, the qualifications will be taken seriously. That is what employers and HE have been telling us.

Helen Jones: While I welcome much of what my right hon. Friend has said today, as a Member of the House and a parent, I am deeply disappointed that she has not taken the opportunity to implement the whole of the Tomlinson report, which is about broadening and enriching the curriculum, not just about dealing with vocational and academic divisions. What funding streams will she introduce to ensure that schools do not have a vested interest in ensuring that children go either one way or the other, and what assessment has she made of the training requirements necessary to implement the structures on vocational education and the extra teaching in English and maths as well as the major project?

Mr. Speaker: Order. It would be unfair of me not to call the remaining Members who wish to speak, but I must appeal to and tell them that their questions must be brief, because the rules of the House recommend that ministerial statements end after an hour.

Ruth Kelly: Thank you, Mr. Deputy Speaker, but the hon. Gentleman does talk some common sense and it is a pleasure for me to answer him. He is right that we cannot roll back on accountability; that we cannot roll back on existing mechanisms for achieving standards; and that we must ensure that we place an emphasis on literacy and numeracy in primary schools, then continuing from the age of 11. We are going way beyond Tomlinson in considering the 11 to 14 curriculum as well as the 14 to 19 curriculum, so right from the word go there is space for catch-up on the basics of reading and writing. We will make getting that right a priority. If children are to have a real opportunity to benefit at 14, they must be educated at 14.

Ruth Kelly: I certainly think that it would be disastrous if we were to introduce selection at the age of five, which is the policy of the Conservative party. It will become more and more important as we develop this agenda for schools to work together in partnership to offer not just academic options but vocational and more practical ways of learning. They will have to work together in networks to deliver, and I suspect that each area will deliver a common prospectus for all students in the area with the various options available to them at the age of 14. We will also need an intensive system of advice and guidance before that happens, to ensure that children really take the options that best meet their needs.

Julian Lewis: I beg to move,
	That leave be given to bring in a Bill to require banks to adopt and maintain specific practices in dealing with vulnerable elderly clients at risk from certain financial arrangements by institutions and from other forms of exploitation by individuals.
	This Bill would have three provisions. The first is to ban ATM cash machine charges for pensioners who are in the process of gaining access to the accounts in which they are now obliged to receive their pensions. The second is that banks that operated the ill-fated share appreciation mortgage schemes in the 1990s, which left elderly people unable to sell their homes without giving three quarters of the increase in their value to the banks, should be declared inequitable. The debt should be rescheduled to impose only a reasonable rate of interest on those loans. I have a direct interest in the third provision, which is that banks should have in place software that will automatically alert account managers, cashiers and, where appropriate, relatives and carers of elderly people, to untypically large or frequent withdrawals being made from a vulnerable client's account—irrespective of whether they are made personally by the account holder. The purpose is to improve safeguards against the activities of con men and other criminals who prey on the vulnerable and the suggestible.
	The first provision is self-explanatory. It has been pointed out to me by Terry Cassels, the chief officer of Age Concern in Essex, that some cash machines charge as much as £5 per transaction for a pensioner to withdraw his or her own pension. That can amount to approximately 5 per cent. of what they receive. That is obviously unsatisfactory. It results from the bringing into being of a system that many pensioners did not want in the first place, and I would have thought that it should be made a condition of any cash machine being placed in a bank, whether owned by the bank itself or by another company working within the bank, that pensioners be exempted from any such charge.
	The second provision of my Bill is more complex. Shared appreciation mortgage schemes were offered between April 1996 and July 1998, by Barclays bank and the then Bank of Scotland, which subsequently merged with the Halifax. About 15,000 people remain trapped in those arrangements.
	I shall give some examples, without identifying the people concerned, from among my constituents. Mr. C. borrowed £44,000 in 1998, but must pay back £180,000 only six years later. Mr. T. borrowed £36,000 in 1998 and must now pay back £152,000. Such massive repayments arise from the nature of the gamble that people took in embarking on these schemes. Instead of paying an agreed rate of interest on the loans, borrowers undertook that three quarters of the increase in the value of their property when it was sold—either by them or by the people to whom they left it—would go to the bank in lieu of interest.
	We all know what happened—the value of houses shot up. As a result, the sums that must be repaid are grossly disproportionate to what a reasonable interest rate would have required. The daughter of another of my constituents, Mr. B., said that
	"surely if a lending company were to charge this they would be considered to be a loan shark and would be treated accordingly. I find it impossible to believe that a High Street Bank can carry on in this manner".
	I wrote to the Barclays bank group chief executive, Matthew Barratt, suggesting that the bank might surprise me, agree to reschedule the loans, and make available to the borrowers interest requirements proportionate to the amount of money borrowed. Sure enough, I got nowhere. I was told that the people involved had taken a risk and that the bank's shareholders could have lost out because the value of property might not have risen. The fact that new Financial Services Authority rules meant that such schemes would not be allowed was never mentioned, nor the fact that the schemes were wound up after only a couple of years.
	Another factor needs to be considered. It is a falsehood for the banks to say that they did not know that property values were likely to rise. I am grateful to Miss Margaret Borwick, a specialist in these matters, who sent me a copy of an article that appeared in the February 1997 edition of the publication Housing Finance, which is the quarterly digest of the Council of Mortgage Lenders. The article shows that the value of property was forecast to increase by 9 per cent. in 1997, and by 7 per cent. in 1998. Both Barclays bank and the Bank of Scotland were members of the council at the time.
	I come to the third and final provision of the Bill. I refer to an Adjournment debate that I held on 11 December 2003, about the activities of Mr. Paul Grey, a rogue builder in Swansea who managed to fleece my father out of £7,500 in cash withdrawals for building work that was never done. Subsequently, he admitted to me in a late-night telephone conversation laced with anti-Semitic abuse that he had been doing that sort of thing for 20 years and that there was nothing that people like me could do about it.
	My proposal is simple, and has to do with the arrangements currently used by credit card companies to cover the situation when a person—like myself, or you, Mr. Deputy Speaker, or any other hon. Member—makes an untypically large withdrawal from an account. Straight away, we receive telephone calls asking us, "Was that really you? The amount being withdrawn seems untypical."
	A similar arrangement should be in place for vulnerable elderly customers at risk of being conned by rogues like Paul Grey. I warned Lloyds bank in Swansea that I was afraid that my father would take out money to pay a builder when he should not. When such a warning is given in other cases, it ought to alert the people running the relevant branch that an untypical payment might occur.
	I have had extensive argument and consultation with Lloyds bank on the matter. Although staff made a note on the bank's computerised database that they would ring me if they suspected that something was going on, they failed to do so because no automatic mechanism existed to alert tellers or initiate the warning process when my poor father started to withdraw money.
	A recent agreement has tried to make banks and cashiers more alert to the dangers posed by conmen. However, I am not satisfied, from my dealings with either Lloyds bank in the one case or Barclays bank in the other, that banks can be relied on to act without being forced to do so. That is why I have brought forward the Bill.
	I commend the Bill to the House.
	Question put and agreed to.
	Bill ordered to be brought in by Dr. Julian Lewis, Mr. Nigel Evans, Mr. Martin Salter, Andrew Selous, Mrs. Alice Mahon, Michael Fabricant, Mr. Mike Hancock, Mr. David Amess, Mr. Gordon Marsden, Mr. Desmond Swayne, Mr. David Chidgey and John Robertson.

Charles Clarke: I shall do so in a moment, when I have made the essence of my argument.
	Al-Qaeda and its network are qualitatively different in their destructive character. Secondly, they are distinctive in the cataclysmic and catastrophic lack of restraint in the measures that they use. They are prepared to use biological, chemical and nuclear warfare to poison water supplies and to destroy whole systems of life—mass murder that is utterly different in its scale and impact from any previous terrorism. Thirdly, they are qualitatively different, because they are prepared to combine mass murder, violence and a cataclysmic approach with a suicidal—I use the word advisedly—readiness to commit such crimes. Suicide and martyrdom are not unique in the history of fights of this kind—what is unique is the combination of suicide and the readiness to commit suicide with the mass murder that they seek to commit. That, I believe, requires different measures from us.
	The fourth difference is particularly important and needs to be well understood. The capability, resources and capacity of terrorist organisations around al-Qaeda, their ambition and sophisticated operation are of an utterly different order in terms of law breaking from their predecessor organisations. The final qualitatively different characteristic of that organisation is its global reach. There have been terrorist acts on an enormous scale in the US itself on 9/11; in Africa, in Tunisia, Kenya, Egypt and Morocco; in Asia, in Pakistan, Indonesia and Turkey; in the middle east, in Saudi Arabia and Yemen; and in Europe during the general election campaign in Spain. This terrorism therefore has a global reach of a different order.

Lembit �pik: I have listened with great interest to the Minister, but he seems to be in danger of generating a league table of terrorism in which paramilitary killings in Northern Ireland are not regarded as just as bad as killings by al-Qaeda. I am sure that he does not intend to give that impression, but why does he think that it is right for the Government to attempt to dispel the motives for terrorism in Northern Ireland when, by contrast, he is intent on using the oppression of the opportunity to terrorise as the sole method for acting against international terrorism?

Crispin Blunt: Does the Secretary of State understand the danger of proceeding on the basis of assertion and the need to produce evidence to sustain support throughout the House and the country for these extraordinary measures? He said that the Government have been successful in preventing operations, but the terrorists surely know that those operations have been disrupted, so why can he not share that information when making his case? He is making a case for the powers of administrative detention on the basis of assertion, but, following the war in Iraq, the Government have lost trust. I urge the Home Secretary to bring a detailed case to the House.

Charles Clarke: There are different solutions and judges in special courts is one solution that could be considered. However, that does not address the central objection of those who criticise the legislation. The fact is that there is evidence of activity that cannot be put before a court, of whatever type. That is the fundamental issue.

David Heath: The Secretary of State knows that our substantial difference of opinion with him is that he is proposing a system of Executive control orders that he would make, which would then be considered by a judge. In our view, it is essential that those orders are confirmed, in the first instance, by a judge on application from him. When the Prime Minister was questioned on the matter, he suggested that the principal argument for that was urgency. Is there not a case for some form of interim order on sufficient evidence to deal precisely with that issue?

Mr. Deputy Speaker: Order. I suggest that the hon. Gentleman rephrases the initial part of his intervention. No right hon. or hon. Member seeks to mislead the House.

David Winnick: As I said yesterday, I will support Second Reading of the Bill later today, but I would be much happier if the Home Secretary would reinforce the point that he made to my right hon. Friend the Member for Livingston (Mr. Cook), when he said, in effect, that he will give very careful consideration to the valid points made by right hon. Friend and other Members. If the Home Secretary does that, I will vote tonight in the way that I suggested in a much happier frame of mind.

Charles Clarke: The resources issue is serious, as the right hon. Gentleman says, and one of the reasons that there has been a significant increase in resources for the security services in the comprehensive spending review is to try to ensure that we have those means. There is first the legal question and then the question of resources that he raises. We are making resources available to deal with the matter.

William Cash: The Home Secretary has set out his motivating principles.

Charles Clarke: There are two answers to that questionone of principle and one of practice. I think it is right in principle that, if there is to be a derogation, the subject of that derogation, both in terms of the threat and the strict requirement for deprivation of liberty to meet that threatthe two legs of a derogation caseshould be debated in this House and the other House. There should be specific discussion of that question and every Member of this and the other House should make their decision on that issue. That is a superior way of legislating on these difficult matters, rather than the general confusion of another piece of legislation going through.
	There is also an important practical question. The fact is that terrorists are moving rapidly and it may be necessary to move rapidly to deal with them. I need only cite the most recent example in Europe. The Madrid atrocity took place during the Spanish general election campaign and such things are always possibilities in this country, too. In those circumstances, we must be able to take the steps necessary to stop such things happening.

Charles Clarke: I will deal with the second point first. The derogation arises either when there is an individual measure or a combination of measures that add up to a deprivation of liberty. It will arise when an individual or a set of measures are being considered in those circumstances. Although I respect my hon. Friend's personal experience, I do not accept her comparison, because when we reach the point of deprivation of liberty a whole set of other issues comes into play, so we need a separate legal regime.

Charles Clarke: I shall not give way, as I want to make progress.
	The third motivating principle, which exactly meets the point made by the right hon. Member for Haltemprice and Howden, is the need to meet the Law Lords judgment. In general, I do not regard it as a successful and positive state of affairs when the senior judiciary of this country, the Law Lords, and the Executive are in rather different places, and certainly not in terms of measures of this type. Their criticism of the regime in place was that it was disproportionate in character and discriminatory, and we should take that criticism extremely seriously. The measures that I am putting to the House in the Bill would address that question directly.

Charles Clarke: I shall give way again when I come to the end of what I am saying. The hon. Gentlemen can listen to what I am saying and then come to a view. The fact is that, from June 2002 until December 2004, when the Law Lords judgment was passed, a judicial process was taking place, with its final step in the Law Lords judgment, considering the legality or otherwise of the steps that had been taken. In my opinion, it was correct in relation to that process for us to await the judgment and decide exactly what we would do on the basis of receiving it. We now have that judgment. I argue very strongly that we should not ignore the judgment or flout it, but act on it and try to put in place a regime that is both proportionate and not discriminatory.

William Cash: The Home Secretary is not really answering my point. It is not a question of whether or not he is complying with the Law Lords judgment. The problem arises because the Government have got themselves into a complete mess with regard to the human rights legislation. Surely the point is simply that, to ensure that the House can legislate on its own terms, it must legislate notwithstanding the Human Rights Act 1998, and then he is in the clear. Does he not see that?

Charles Clarke: I do not accept any of that. I simply do not accept the argument. I do not think that it is correct. What I do think is that when the Law Lords of this country make a set of criticisms about the way that we are operating that is well founded, by a vote of eight to one, it is incumbent on the Governmentand I would argue on Parliamentto respond to that and decide how to deal with it.

Charles Clarke: The courts will be able to consider the material situation. As I said, I will come to the judicial review process in a moment.
	The House will be glad to hear that I am now on my final and fourth motivating principle for the Bill: the need to end the uncertainty about the legal position that exists at the moment. Why is renewal of the existing powers, as proposed by the Opposition, in my view so poor an option, other than to give the Conservative party the chance to buy time and get itself sorted out? There are two main considerations, which I set out yesterday in the House.
	First, if we were simply to renew the current part 4 legislation, as is proposed, it would be entirely possible for the individuals concerned, at Belmarsh or wherever, to appeal against the Act to the European Court of Human Rights at Strasbourg directly in that time scale. The very act of making that appeal would put uncertainty into the situation, which I believe would be undesirable. Moreover, in that situation, in the case of the individuals currently in Belmarsh, it would be entirely possible for SIAC, when considering their cases, to say that the position that we had taken did not allow detention in those circumstances, despite the fact that the order had been renewed.
	If we were to accept the advice of the Opposition to renew the part 4 powers, in effect, we would be establishing a regime that was uncertain and not solid for a period of three, four, five or six months. That is why I urge the Conservative party to come to the view that renewal is not the route that it thinks it is to buy time, as set out by the Leader of the Opposition, but is actually a flawed route.
	Those are the four motivating principles of the Bill: first, to secure prosecutions as our best way of moving forward; secondly, to protect national security by the use of control orders; thirdly, to meet the Law Lords judgment; and, fourthly, to end damaging uncertainty. I argue that all those in the House who can support those four principles ought, in my opinion, to support the Bill on Second Reading and give it the fair wind that it deserves. Of course, none of that ignores the fact that there are issues of legitimate debate below those four principlesif I can put it like thatabout the structures that the Bill puts in place. A range of issues will be debated in this House and the other place on those matters. However, it is right to say that, in my judgment, the biggest outstanding issue is the extent and form of judicial involvement in the process. That has been raised by a number of colleagues from my party as well as by other parties.
	I intend to set out the judicial process that is within the legislation and then to confirm again the remarks that I made to my right hon. Friend the Member for Livingston earlier. Before I do that, I will give way to an array of talent on the Opposition Benches.

Clive Betts: Can my right hon. Friend confirm that, given the different powers under clauses 1 and 2, if he concludes that a combination of the various measures under clause 1(3) is required which amounts to a deprivation of liberty the test will be different in relation to whether the control order should be imposed and will be based not on reasonable suspicion but on balance of probabilities?

Charles Clarke: I am grateful for your clarification, Mr. Deputy Speaker.
	As my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) implied, different procedures are proposed for the judicial scrutiny of derogating and non-derogating control orders. Under the Bill's provisions on non-derogating control ordersthose considered beneath the requirements that apply to the deprivation of libertyan individual may appeal against the making of an order to the High Court. When considering the appeal, the court must adopt the approach that it would use for an application for judicial review. I anticipate that, in cases that involve a consideration of human rights, the court will apply greater scrutiny to the Secretary of State's decision and examine closely whether any interference with convention rights is proportionate. There will be a specific obligation to examine such matters carefully.
	On derogating control orders, which are dealt with in clause 2 and other provisions of the Bill, there will be an automatic two-stage process for challenging the order. First, clause 2 provides that a derogating control order must be referred immediately to the High Court, which must consider within seven days whether there were reasonable prima facie grounds for making the order. If there were such grounds, the second stage will be that the judge will automatically refer the case for a full hearing by the court at which it will make its own decision, following a consideration of all material, about whether, on the balance of probabilities, the individual is or was involved in terrorism-related activity, and about whether the control order and each of the obligations were necessary.

Charles Clarke: I shall give way when I reach the end of this point, as I have done throughout my speech.
	The subject of the order will also have the right of appeal against any modification of a derogating control order, or a decision not to revoke or modify such an order. Just as with an appeal against the making of an order, there will be a full hearing at which the court will reach its decisions on the relevant matters.

Charles Clarke: Not at all. The role of the court is still clearly established.

John Bercow: Whether judicial decision is made in the first instance, as we believe, or in the last instance, as the Home Secretary prefers, is surely a fairly fundamental matter of principle. Can I therefore take it, from his response to the hon. Member for Coventry, South (Mr. Cunningham), that the Government's readiness or otherwise to back down next week will depend very much on the size of the revolt this week?

David Davis: I beg to move, To leave out from That to the end of the Question, and to add instead thereof:
	this House declines to give a Second Reading to the Prevention of Terrorism Bill, because it contains excessive powers in relation to requirements on a person to remain at a particular place when such powers are not presently necessary; gives to the Executive powers that should be exercised by the judiciary; allows decisions to be made on an insufficient standard of proof; fails to address the need to bring terrorists to trial on the basis of all evidence available; and thus wrongly infringes the right to liberty of the individual.
	I shall start by attempting to put this debate on a proper basis. First, the Home Secretary started with rather a good description of the state of terrorism today. I did not agree with all his five categories for differentiating al-Qaeda, but there is no doubt that it constitutes a qualitatively different set of terrorist threats than existed before. That does not mean that we should throw away all that we have learned in this country in dealing with terrorist threats in the past. It does mean, of course, that we should alter our tactics accordingly. However, we should not throw away the civilised standards of which this country has become proud over the centuries.
	I want to make two other points to the Home Secretary. Yesterday, he accused his opponents on this issue of, I think, playing politics with terrorism. That accusation is neither helpful to this debate nor in any sense serious. The easy political line in this sort of debate is to tub-thump about the threats, to raise the temperature and to talk about draconian penalties for terrorists. The harder line is to raise questions of principle, liberty and the proper process of British justice. The easy but, in my view, irresponsible approach would have been to roll over and let the Government legislate in ways that reduce liberty and harm long-standing, important traditions of British justice, which might even worsen rather than improve the terrorist situation.
	Secondly, the Home Secretary alleged yesterday that the alternative to what he recommends is that we do nothing. That is clearly and patently untrue. It does not reflect well on the strength of his arguments that he needs to put up such an Aunt Sally. Not only have we made alternative proposals, but I and my predecessor made a number of those proposals to his predecessor, giving the Government a great deal of time to consider them.
	Let us take, for example, the proposal that has been raised several times in interventions today, and which the Home Secretary has rejectedthat intercept evidence should be used in court to enable more terrorists to be brought to justice and locked up in a prison, not in their living rooms. I said to the Home Secretary in February 2004:
	Everyone agrees that the most desirable way to deal with terrorists is to bring them before the courts. That is where the Home Secretary should be concentrating his effortslooking at aspects of the law that make prosecution more difficult and seeing whether they can be corrected.[Official Report, 25 February 2004; Vol. 418, c. 314.]
	The Newton committee highlighted one aspect in particular on which we believe that the Government should act. Paragraph 208 states:
	In our view one way of making it possible to prosecute in more cases will be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court.
	We agreed. That conclusion was reached by Lord Lloyd in his 1996 review. It had the backing then of Lord Carlile and has been advocated in relation to terrorist cases for many years by the right hon. Member for Upper Bann (Mr. Trimble). It has had the support of successive Chief Constables in Northern Ireland, of Sir John Stevens, as well as support in the United States and in other areas.
	In the United States, extensive details of intercept capacity are published and are a matter of public record. They will therefore already be accounted for in al-Qaeda's behaviour, training and tactics. It is therefore difficult to see how knowledge of our much smaller intercept capacity in this country could make much difference to the training and tactics of al-Qaeda, especially when that is measured against the value of such information in court. That exchange was one year ago.

Lembit �pik: Although my intervention does not relate to that specific point, to avoid interrupting the right hon. Gentleman later, may I ask him the same question that I asked the Home Secretary about motive? In the north of Ireland, a great deal of progress has been made by considering the motives of terrorism. Does he feel that the Government have paid sufficient attention to considering the motives of international terrorists? That is not to condone what they do, but perhaps we would get further with that than with having as our sole methodology the attempt to suppress the opportunity to terrorise, as the Government seem to be doing.

David Davis: To be fair to the Home Secretary, his first duty in this respect is to prevent the outcome of terrorist attempts. He cannot be held responsible for reading or misreading terrorists' motives.
	To a large extent, many western Governments misread the motives of al-Qaeda. It is something that is not well understood. Of the five conditions of change or difference that the Home Secretary has laid down, I did not agree with his first one, which was about the nihilistic approach. There have been nihilists in the past, but the approach of al-Qaeda is rather more pointed than that. The Home Secretary properly says that his first job is to stop terrorists.

David Davis: No, the hon. Gentleman is not right. I talked to the previous Home Secretary about this very issue. I said that whatever our differences and disagreements in public about the principles, I would not be calling for the release of any individuals precisely because of the knowledge that he has. I do not think that Hansard would show what the hon. Gentleman describes as being my view.

David Davis: I agree with the conclusion but not with my hon. Friend's premise. It does not follow that if these people were not in Belmarsh they would not be under surveillance. It is entirely likely that they would have been under surveillance if they had not been in Belmarsh. The thrust of the debate is about what the proper surveillance and control is. I hope that we can come to that in a moment.
	I shall finish with the issue of the Home Secretary's allegation that there is no alternative. It picks up the point that was made earlier. We recommended taking up the Newton committee proposal that we put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in a way that protects our security services but that is also fair to the defendant. This is relevant to what Lord Carlile says. I cannot remember the page number, but Lord Carlile raises the problem of the Special Immigration Appeals Commission procedures and the fact that nothing has happened to respond to his own recommendations with regard to those procedures. That is one thing that would help and we supported that idea.
	We also supported also the idea of an extra charge. I think that the Home Secretary, from what he said earlier, is taking up the idea of acts preparatory to terrorism. We would also look at laws based on the American anti-racketeering laws, which are designed specifically to deal with the same problems of difficulties in obtaining evidence. We would look at any procedure that protected the traditional rights to justice and liberty of the British subject, but which would advance our ability to catch, to prosecute and to convict terrorists. As I think the Home Secretary agreed, that must be the main thrust.
	That raises the issue of the way in which the Government are attacking the problem. In the area of security, the Government have a unique advantage. They have access to data about the activities of terrorists, and knowledge of what they could and could not do in bringing charges given specific problems of evidence. They should have spent the past three years analysing and identifying cases where a change in the law would allow prosecutions to be brought on the basis of available evidence. They should then have discussed those matters with the Opposition parties, and they would have undoubtedly received support for that approach. I am sure that I am right. I certainly speak for the Conservative party, and I suspect that I speak for the Liberal Democrats, too. I see the Liberal Democrat spokesman nodding.

David Davis: I agree with the hon. Gentleman. I do not speak for the Liberal Democrats. I am glad to have that clarification. I would hate that confusion to be promulgated.
	We should recognise that the problem that we face arises as a result of poorly drafted legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable, but we should not repeat it now. We should take time to get things right. That is why I offered support to the Government in extending part 4 powers for a limited time. The Home Secretary has said that that will not work. That begs the question why he laid a draft statutory instrument a few weeks ago to achieve exactly that outcome. The explanatory note to that SI read:
	The House of Lords expressly stated that the Act remains a valid, enforceable and effective enactment
	If the Home Secretary has concernsto be fair to him, he expressed them to me in private some while ago, before we had this debatehe will remember that I said that we would be willing to put in place a short piece of primary legislation to ensure that the process worked. Far from doing nothing, the Opposition have done everything in their power not just to offer alternatives, but to create time for the Government to consider the alternatives and any other reasonable ways of finding an answer to this difficult problem.
	As I have said, I agree with the Home Secretary that this is about a qualitatively different sort of terrorism that has been true, and known to have been true, for three and a half years, not three and a half weeks. What we are considering today should have been dealt with in the much longer term, as was promised by the Government, within six months' of the publication of the Newton report, on which they did not deliver.

David Davis: It is not for me to make judgments on the safety or otherwise of the individuals concerned. It is for us in this place to lay down the rules. One possible piece of primary legislation we could add would be to ensure that bail conditions amounted to the control orders that are laid out in the Bill, if need be, for the duration of three or six months, not in perpetuity and not applying to all British citizens. That is a possibility. That is as close as I will go in commenting on individual cases.
	Yesterday, I asked the Home Secretary a number of questions on the substance of the Bill. I have to say that I received no answers to them. Under the proposals that are before us, for the first time in modern British history a politician will be able, by order, to constrain the liberties of a British subject. He would do that either on the balance of probabilities or merely on simple suspicion. He would do it for reasons and on evidence that may not even be known to the British subject who loses his liberty. Virtually every control order costs the subject some liberty. We should not differentiate on that basis. There is not a step change, as it were.
	I repeat a quote which I used yesterday from one of the Law Lords, Lord Roger. He said:
	The Government's assessment is that it is not necessary to detain British subjects in order to contain the threat they posed.
	That is implicit in the entire policy that the Government adopted, and it emerges in any event from paragraph 36 of the Home Office discussion paper Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society, which was issued in February 2004. The document states that
	while it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify.

David Davis: The quotation is from an exchange in which the current Prime Minister said that it was vital that when the liberty of subjects is curtailed, it should be done by the judiciary and not the Executive. The Home Secretary should check the entire exchange and fire his research assistant.
	The Home Secretary told the Home Affairs Committee that the terrorist threat has not materially changed in the past year, so presumably the earlier comment about draconian powers being difficult to justify is still true. He reinforced the point with his comment that the security services do not believe that they need the full extent of the powers in this Bill at this point in time.
	This question, which runs right through the debate, must be asked: what is the immediate emergency that demands that draconian powers against British subjects should be rushed through the Houses of Parliament without proper consideration, scrutiny or debate? What is the emergency that has arisen in the past 12 months that demands that we give the Home Secretary the right to fetter the liberty of British subjectsfrom restricting their ability to communicate right up to and including house arrestwithout proper debate?
	The most substantive concern about the procedure, and it is not the only concern, that the Home Secretary mentioned half a dozen times in his opening remarks is that it is proposed that a British citizen will face the loss of liberty on the decision of the Home Secretary, on suspicion alone and on evidence that the accused never sees. Why should that decision be made by a politician and not by a judge? Earlier today, the Prime Minister suggested that that will allow for speed, but in the most risky case a terrorist can be locked up for 14 days. The previous Conservative Government initiated that law and this Government have extended it. That period is far longer than is necessary for a judge to make a decision, even under the review procedure proposed by the Home Secretary.
	There are good reasons why the Home Secretary should not take such decisions. Imagine the pressures on any politician, and on the Home Secretary in particular, after a terrorist outrage. Imagine the temptation to be better safe than sorry and to put away everybody, which are precisely the circumstances in which a miscarriage of justice will occur.
	Yesterday, the Home Secretary unequivocally stated in his response to the hon. Member for Winchester (Mr. Oaten) that he should take those decisions rather than a judge because of the principle of Ministers' accountability. Within minutes, another Member asked him to comment on a particular case. The Home Secretary replied that he is unable to comment on individual cases, at which point the principle of Ministers' accountability unravels. The nature of the decision is that it is taken on secret grounds, which he cannot share with the House, and that he is unable to comment on the individual case itself. His principle is one of false accountability. Real accountability requires the House to be able to question and the Minister to be able to answer, and that level of accountability cannot exist on this issue.

David Davis: I do not have an instant answer to that question, which I would have to examine in some detail before answering. Throughout the short duration of the Bill, we intend to examine all such issues to see whether we can amend the Bill to make it acceptable. We are, after all, trying to achieve the right balance between liberty and the protection and security of the public. My argument today is effectively that the balance in the Bill is wrong.

Tam Dalyell: In one way or another, the right hon. Gentleman has great experience of the security services. Does he share the unease felt by some. Members about the information on which Ministers must base their decisions? In 1968, Harold Wilson wanted to appoint the then MP for Lanark, Judith Hart, to his Cabinet. The security services objected on the ground that Mrs. Hart had a communist background, but they had identified the wrong Mrs. Hart, who had nothing to do with the MP for Lanark and who was the wife of a distinguished professor at the university of Oxford. The Home Secretary knows that the security services did not distinguish themselves during the miners' strikeand we will leave weapons of mass destruction out of it.

David Davis: As ever, the hon. Gentleman makes his point elegantly.
	That brings me to the question of the evidence on which the Home Secretary makes his decision. The Home Secretary proposes that control orders below the derogation thresholdtagging, communication restrictions and the likeshould be made on the basis of reasonable suspicion, which is an even lower standard of proof than the assumption of the security services in the case of Judith Hart. Incidentally, the standard of proof is so low that it implies a large number of control orders, and I would like to hear what the Minister for Crime Reduction, Policing and Community Safety thinks will happen when she makes her winding-up speech.
	Secondly, though technically capable of challenge, the evidence will not all be seen by the accusedJudith Hart would not have known what she was accused of under these circumstances. Reports coming out of the SIAC indicate that, sometimes, the evidence put at the secret hearing is materially different from that put at the open hearing, so much so that the nature of the actual charge is different in the closed hearing from that at the open hearing. That means that, completely contrary to all British principles of justice, the accused will not be able to answer the charge, even if he is absolutely innocent and has a cast-iron alibi.
	That brings me again to the nature of the evidence. The former Foreign Secretary, the right hon. Member for Livingston (Mr. Cook), has expressed doubts about resting such serious action on unchallenged intelligence data because of the inherently unreliable nature of the information. He has a significant point, which was made even more firmly by the Father of the House.
	As the Father of the House says, in previous years I have had various dealings with the agencies. It has become apparent to me that no matter how professional the agencies areclearly there have been unprofessional actions on their partthey are always entirely dependent on the accuracy of their sources. These sources are not James Bond with a Minox camera. Generally, they are associates of the target and are motivated by many thingsmoney, greed, envy, malice, hatred and, sometimes, a wish to remove a rival. We are not talking about the most impartial of sources, leaving aside the gross error that the Father of the House mentioned. It is on the basis of suspicion, based on evidence such as that, that the Home Secretary wants to take for himself the powers to constrain the liberty of British subjects.

Douglas Hogg: May I reinforce my right hon. Friend's point by asking whether he read the letter in The Daily Telegraph yesterday from a man whose father was interned on the corrupt evidence of an informer, a particular case of someone being falsely accused? May I also remind my right hon. Friend that the Leader of the House was prosecuted before the Old Bailey, having been framed by the South African security services?

Robert Marshall-Andrews: Will the right hon. Gentleman reflect on the remarkable power in schedule 4(3)(c)one of the comprehensible parts of the schedulewhich says, in terms, that the Secretary of State shall not be required to disclose to the court any information or material that he has but does not intend to use? In other words, by statutory precept the Secretary of State is able to conceal disclosure that might be exculpatory.

David Davis: That is an excellent point, which reinforces my concern. I am presuming in all of this a Home Secretary of impeccable motivation who is given information that he will be encouraged not to allow to be challenged. That is simply not acceptable because the price of mistakes in this area is very high. A miscarriage of justice is always a matter of real concern and, even with these control orders, such miscarriages of justice can wreck lives, even at this apparently low level.
	Imagine the impact on a software designer of being denied access to the internet, or on a salesman of being denied access to telephonesit would be the end of his career. In causing harm to the individual, that will give ammunition to the enemies of the state that we are trying to stop with the Bill. The chairman of the Bar Council said:
	  Disproportionate measures risk radicalising the community from which a detainee comes. That may make this country less rather than more safe.

David Davis: The right hon. Gentlemanwho, again, has a distinguished record in this areais reflecting a suggestion that I made earlier, namely, a distaste for control orders. I am laying out a series of hurdles that we have to get over. One is the question of the judge. The hon. Member for Sheffield, Attercliffe (Mr. Betts) made a good point, saying that the fact that the judge only reviews the matter and judges whether the Home Secretary has acted unreasonably makes the level of proof that much lower again. We have an accumulation of effects that reduce the proposal to acting on suspicion, the dangers of which are large.
	To answer the right hon. Gentleman directly, the question we will be pressing through the course of the Bill is whether it is capable of being turned into something consistent with long-standing traditions of British justice and will help in the fight against terrorism, rather than give ammunition to our enemies.

David Davis: The right hon. Gentleman has been in his job for quite a time, too, and he knows that I am paid to make decisions and not to think out loud. We are trying to ensure that the measure works as well as it can. Also, we have said, in terms, that there are other Bills or laws that ought to be enacted to give the Home Secretary greater powers and to widen his net. At the moment, there are no such powers. As the Home Secretary has said, there have been 701 arrests, approximately 400 prosecutionsa little less than half on terrorist issues, with many others on immigration and other issuesand 17 convictions so far. For three and a half years we have managed to maintain the safety of the public, and the security services have done a very good job in that regard.
	What has changed in the past three and a half weeks? If the Home Secretary had been saying for six months, Look, we are concerned about British subjects being a terrorist threat and we need to deal with this, and if we had talked the matter through in some detail and been able as a House of Commons to come to a considered balance between the threat to the publicwhich is never as quantifiable as the right hon. Member for Southampton, Itchen (Mr. Denham) describes incidentallyand the ancient rights of the British people, I would be in a much more amenable frame of mind to his question.
	We now have essentially two weeks to try to put together the follow-on from a Bill that itself was so ill drafted that it has fallen to pieces in the hands of the Government, and that is not a very good way to secure the future security, or indeed the future liberty, of British subjects.
	I was rather sorry that the Home Secretary was not present at the previous debate because I was going to tease him a little. He and I were at university at approximately the same time, and no doubt we both read the fashionable left-wing writers in those days.

David Davis: The right hon. Gentleman shakes his head and claims that only I, a Conservative student leader at the time, read them when he did not. Fair enough. But one of the things that they all clearly argued was that one of the primary aims of a terrorist is to provoke a reaction from the state, which in turn will radicalise a part of the population and recruit them for the terrorist cause. There is a serious danger of that if the use of these control orders is seen to be unjust, even by a minority, and that alone should be a telling argument for the power being exercised by the judiciary, not by the Executive.
	After three years in which none of these powers has been available against British citizens, at a time when the Home Secretary himself says that the security risk is the same as it was a year ago and the security services and police say that they currently do not need the most draconian powers listed here, why do we suddenly need this measure in 14 days flat in the shadow of a general election? The Prime Minister said that the security services say that they need them. Did they tell him that in the past few weeks? Did they tell him that they needed them instantly? I doubt it.
	To reiterate, the Home Secretary is taking powers to curb the freedom of British subjects by order, on suspicion, based on limited and possibly doubtful evidence. He does this after his own Department said that the measure was draconian and unjustifiable less than a year ago, and he does it after no apparent change in the circumstances in a rushed Bill with wholly inadequate scrutiny in either House of Parliament. That cannot be the way for a democracy that believes in the rule of law to proceed.
	Lord Lloyd of Berwick, a former Law Lord who has great expertise in this area, said that the Home Secretary
	can confine British citizens for the first time in our history to house arrest. There are upwards of a thousand British citizens suspected of having links with Al-Qa'eda terrorism. Up until now, it has been possible to contain the threat without these special powers. The question is: why has it suddenly become necessary to impose these quite exceptional control orders?
	That is the question that the Home Secretary must now answer.

Brian Sedgemore: As this will almost certainly be my last speech in Parliament, I shall try hard not to upset anyone. However, our debate here tonight is a grim reminder of how the Prime Minister and the Home Secretary are betraying some of Labour's most cherished beliefs. Not content with tossing aside the ideas and ideals that inspire and inform ideology, they seem to be giving up on values too. Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly. It is not just the Government but Back-Bench Members who are to blame. It seems that in situations such as this, politics become incompatible with conscience, principle, decency and self-respect. Regrettably, in such situations, the desire for power and position predominates.
	As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today, if hon. Members will pardon the oxymoron, I am reminded that our fathers fought and died for libertymy own father literallybelieving that these things should not happen here, and we would never allow them to happen here. But now we know better. The unthinkable, the unimaginable, is happening here.
	In their defence, the Prime Minister and the Home Secretary say that they are behaving tyrannically and trying to make nonsense of the House of Lords' decision in A and Others as appellants v. the Home Secretary as respondent because they are frightened, and that the rest of us would be frightened too if only we knew what they will not tell us. They preach the politics of fear and ask us to support political incarceration on demand and punishment without trial.
	Sad to say, I do not trust the judgment of either our thespian Prime Minister or our Home Secretary, especially given the latter's performance at the Dispatch Box yesterday. It did not take Home Office civil servants or the secret police long to put poison in his water, did it? Paper No. 1, entitled International Terrorism: the Threat, which the Home Secretary produced yesterday and I have read, is a putrid document if it is intended to justify the measure. Indeed, the Home Secretary dripped out bits of it and it sounded no better as he spoke than it read. Why does he insult the House? Why cannot he produce a better argument than that?
	How on earth did a Labour Government get to the point of creating what was described in the House of Lords hearing as a gulag at Belmarsh? I remind my hon. Friends that a gulag is a black hole into which people are forcibly directed without hope of ever getting out. Despite savage criticisms by nine Law Lords in 250 paragraphs, all of which I have read and understood, about the creation of the gulag, I have heard not one word of apology from the Prime Minister or the Home Secretary. Worse, I have heard no word of apology from those Back Benchers who voted to establish the gulag.
	Have we all, individually and collectively, no shame? I suppose that once one has shown contempt for liberty by voting against it in the Lobby, it becomes easier to do it a second time and after that, a third time. Thus even Members of Parliament who claim to believe in human rights vote to destroy them.
	Many Members have gone nap on the matter. They voted: first, to abolish trial by jury in less serious cases; secondly, to abolish trial by jury in more serious cases; thirdly, to approve an unlawful war; fourthly, to create a gulag at Belmarsh; and fifthly, to lock up innocent people in their homes. It is truly terrifying to imagine what those Members of Parliament will vote for next.I can describe all that only as new Labour's descent into hell, which is not a place where I want to be.
	I hope thatbut doubt whetherethical principles and liberal thought will triumph tonight over the lazy minds and disengaged consciences that make Labour's Whips Office look so ridiculous and our Parliament so unprincipled.
	It is a foul calumny that we do today. Not since the Act of Settlement 1701 has Parliament usurped the powers of the judiciary and allowed the Executive to lock up people without trial in times of peace. May the Government be damned for it.

Mark Oaten: When my hon. Friend was doing the job that I am now doing, he was clear about our determination, whenever we had to decide what to do with a derogation, not to ignore it but to suggest alternatives. I take that approach as well. We have made such suggestions at various times, and we could have had this debate some time ago; but at least we are having it now, and I think it is agreed that we must now move on.
	There is agreement on another matterhelped, I think, by what I considered to be a constructive speech by the Home Secretary. He reiterated that prosecution should be the starting point, and I think we all agree that we should seek prosecution in these cases. Nevertheless, I take the point made by a number of Members that it would be helpful to enshrine that starting principle in the Bill. At present, we have only the Home Secretary's words, and, as some of his hon. Friends have suggested, the principle does not come across strongly enough.
	There is some agreement on another issue, which, although we have not discussed it yet, is relevant. Our long-term objective is an international situation in which deportation is a proper solution. I shall deal later with the respects in which we disagree with that, but there is surely consensus that we must be heading there at some point.
	I am now convinced of the Home Secretary's arguments that in relation to the current detainees, intercept communication would not have been a useful tool for the purpose of achieving prosecution. I shall deal with the differences between us later, but in the context of that narrow aspect I accept that intercept communication would not have dealt with the existing problem.
	There has been some interesting movement on control orders this afternoon. For some time we have argued against a black-and-white approach, suggesting that another tool is needed to deal with the complex issues and that control orders would be useful. There are differences on how they should be introduced, and I should say something about that shortly; but at least there seems to be cross-party consensus that control orders have a role to play. The right hon. Member for Haltemprice and Howden (David Davis), who is having a little natter at the moment, implied earlier that the Conservatives were prepared to consider them in some shape or form. Let us bank that, and see if we can move on. We may not like control ordersI am not wild about them myselfbut hey, we are trying to find a sensible solution to all these problems.

Mark Oaten: I do not underestimate any of that and I shall explain how we can make the control orders work so that they deal with our principles. One has to have other schemes to deal with this issue in addition to the possibility of jail. We have been prepared to say that we will look at controls orderssubject, obviously, to the principles that I shall outline later.

Mark Oaten: I would not say that I have given that away quickly, or that an enormous issue of principle is involved in control orders. The issue is: how do we impose those control orders and on what standard of proof do we impose them? Those are pretty big principles and I shall fight for them, but I am prepared to throw control orders into the equation of the debate to try to find an alternative to holding detainees in the way that they are currently held.
	The next area where there is some agreement, or at least where some progress has been made, is the Home Secretary's acknowledgement that there needs to be some judicial involvement in this process. We disagree about where that should be, but it is worth putting on the record that we welcome the fact that, in arguing that the judicial process should be a reviewing mechanism, he has at least moved to strengthen the reviewing mechanism. Derogating control orders will be referred automatically within seven days and judges will be able to look at the evidence independently, rather than just making an assessment following the Home Secretary's decision, which is welcome.
	There remain peculiarities in the proposals. The point has been made about the powers that judges would have to redirect the Home Secretary. It raises the question whether the Home Secretary would be bound to listen or could play ping-pong back and forth between the judges.
	There is agreement on a point about which I know the Home Secretary cares a lot. He argues continually that he has responsibility for national security. We agree, but we do not necessarily agree that that means he must have the power to make these decisions separate from a judge. We believe that he could keep and fulfill that responsibility while meeting the requirements. The Home Secretary has responsibility for national security, but not for reviewing individuals case by case in the way he suggests.

Mark Oaten: I entirely agree with the right hon. and learned Gentleman. It is indeed one of the weaknesses that we are trying to highlight.
	Having acknowledged some movement on areas of agreement, let us now move on to areas of disagreement and then perhaps seek some ways forward. I want to deal quickly with deportation. We disagree because we would like much stronger reassurances on human rights issues. It is not satisfactory for Ministers to be exchanging memorandums on these issues. The orders must be binding and tested, and we must have some reassurance that, before we proceed with any deportations, proper human rights principles are in place.
	We disagree about intercept communications, but the Home Secretary said that he wants to leave the door open. When he made his statement yesterday, I suggested that one way to make progress would be to re-establish the Newton committee or some other body to consider sensible ways in which we could use intercept in certain cases in six months' time.
	The main area of fundamental disagreement is the point at which the judicial process kicks in. The Home Secretary believes and insists that it should be after the event; we believe that it should be at the beginning of the process. There is a big gulf between us and it is difficult to see how we can find a way forward as the Bill proceeds through Parliament. It is an important principlenot just a matter of having a timeline and deciding when things should happenbecause a politician is being given the ability to restrict the liberties enjoyed in this country solely on the balance of probabilities. That represents a break with years of our history and the Liberal Democrats are extremely uncomfortable with it.

Mark Oaten: I want to be as transparent and open as possible about this matter, and if we saw some real movement, we would certainly be in the business of debating some of our other concerns about the Bill.
	That deals with one critical issue. I am trying to be as helpful as possible, so I shall move on to raise some further issues on which we want reassurance. My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) provided another compelling reason for ensuring that judges are involved at the start of the process when he referred to the continual embarrassment of the Home Secretary in having his decisions overturned by judges as time goes on. That is a strong argument.
	Our next major disagreement is over standards of proof. I acknowledge that the wording has now moved a little in the right direction, but not far enough for us. As the Bill proceeds, we must carefully examine the different standards of proof that apply, particularly when we are talking about depriving individuals of their liberty. The highest standards must apply when we are contemplating house arrest or detention, but I disagree with the idea that it is acceptable to have reduced standards of proof for some lower-level control orders. Fundamental issues about liberty may still be at stake when recourses other than house arrestcurfew and tagging, for exampleare adopted. Liberties are deprived in those cases, too, so we would require a great deal of convincing that lower standards of proof were acceptable.
	The same applies to the issue of whether evidence can be heard. The right hon. Member for Southampton, Itchen (Mr. Denham), the Chairman of the Home Affairs Committee, intervened on the shadow Home Secretary to ask about the effect of these issues on the operation of control orders. I accept that, in some circumstances, it is not possible to bring in all the evidence, but we want a sensible debate with the Government about ensuring that as much evidence as possible and the highest possible standards of proof are used in these cases.

Mark Oaten: The shadow Home Secretary mentions another interesting matter. We have not probed the Home Secretary on that yet, but it will be interesting to know how far he expects the Bill to help in an area where he has previously lacked legal support. We have been talking about foreign nationals, but we have not asked how much the Home Secretary and the intelligence services believe they need the Bill to help with British nationals. When the Minister for Crime Reduction, Policing and Community Safety winds up the debate, I hope that she will say whether she envisages that about 100 or 150 control orders will be issued in the future. Conversely, is it her assumption that the proposed new system will deal with roughly the same numbers of people as is presently the case with foreign nationals?
	I have set out where my party agrees with the Government in this matter, and where we disagree. I now want to float some suggestions for a possible way forward in a number of areas. We could achieve cross-party support on control orders and the point at which the Home Secretary would become involved in the process. In exchanges at Prime Minister's Question Time today and during the Home Secretary's statement yesterday, it became clear that there were two barriers to the Home Secretary's agreeing to our suggestion that he should apply to a court in the first place. First, he argues strongly that he has national responsibility for making the decision. We believe that he would not be derogating from that duty if he assessed the intelligence information himself, made a judgment and then applied to a court. I cannot see how that route would leave him open to criticism for failing to meet his responsibilities.
	Secondly, objections were expressed both by the Home Secretary and strongly today by the Prime Minister about the time issue. Again, I think we can overcome them. As hon. Members have said, individuals can currently be held for 14 days. I have received legal advice that that may not be adequate to help the Home Secretary with the difficulty of dealing with terrorists. The ability to hold an individual for 14 days is based on the assumption of an investigation taking place and a charge being made. If that were the case, we would work constructively with the Home Secretary to find another way to allow him a limited emergency power for a short period on the assumption that all that was being done before was that an individual was being held before the Home Secretary applied to the court for an interim order to start the judicial process. We accept that all the papers and arguments might not be forthcoming within 24 hours. However, because an interim order would be in operation, we would allow some time to elapse so that the papers and the full case for a control order could be advanced. I believe that that meets the concerns about the Home Secretary fulfilling his responsibilities for national security. It would meet the concerns that he and the Prime Minister have expressed about time scales, as he could act the minute that he had the intelligence information. It would also meet the concerns of Liberal Democrats and other hon. Members about the need for a proper judicial process. I hope that in Committee we will have a sensible dialogue about those issues.

Mark Oaten: My right hon. Friend is right, and that can be added to my list of issues that we need to discuss.
	Finally, on the question of what we do with the current detainees held in Belmarsh, the Home Secretary's statement yesterday that he does not intend to trigger the requirement for house arrest suggests that two things will happen. First, on 14 March, if he gets the Bill through Parliament, he would release the individuals from Belmarsh and, I assume, put them on to a tagging system or perhaps a lower level of surveillance. Secondly, he would release the individual held under house arrest with some form of tagging. It would be helpful to know what plans the Home Secretary has for those individuals and whether my assumption of what will happen is accurate.
	The problem remains that, if we cannot reach agreement on the Bill and it is impossible to reach agreement on renewal of derogation along the lines suggested by the shadow Home Secretary, we have a responsibility to do something about those individuals and certainly not to leave them in Belmarsh for an extended period because we fail to come to a decision. When the Minister winds up, I hope she will say how we can have a constructive discussion about what we should do with those people. It is a shame that they are being held in Belmarsh when the Home Secretary has stated that it is not his intention to hold them there. The sooner we can resolve that problem, the better.
	The issue is all about a balance between civil liberties and ensuring the right security in this country. Our judgment is that the Government have had the wrong balance for the past three years, but we acknowledge that it is improving. It is still not right, but there is good will on our side to move that balance in a direction to enable Liberal Democrat Members to support these measures. However, we are a long way from that yet.

John Denham: I am prepared to make it clearthe shadow Home Secretary was notthat a group of people exists on whom the Government have evidence that they cannot bring to court and against whom it should be necessary to take action. If I have time, I shall develop my reasons for believing that, but I make that statement of my belief for the purpose of my initial comments.
	I am primarily concerned in this debate to achieve the right practical outcomes in terms of human rights, civil liberties and our ability to tackle terrorism. An overly legalistic debate on such matters is not always helpful and there is a certain amount of self-flagellation in our approach to such issues in this country. Across the channel, the legal procedures are apparently different. However, the reality is that people are detained for up to four years without trial and that a regime exists which the French authorities believe leads many people to leave France because they are worried about detention powers. Under that regime, the Government deport people to many countries to which our legal system finds it impossible to deport people. I am not giving a view on whether that is right, but it is a reality in the modern world. Some of the suggestions made during this debatethat we are putting ourselves beyond the pale with our proposalssimply do not recognise the reality of what happens in other countries.
	I want to focus on an exchange that I had with the Home Secretary earlier and to move slightly away from whether the Home Secretary or judges should make the initial decision on control orders. I believe that the practical outcome of those two different approaches would not be wildly different. The issue of principle is a major difference, but the practical outcome in terms of who is detained is not likely to be so great.
	We could argue that the Government should change their position or that the Opposition have no basis for bringing down the legislation here or in another place, but I want to focus on what happens at an earlier stage in the process. In either model at the moment, the intelligence services and, perhaps, the police present a case to the Home Secretary, which he decides there and then, or takes to a judge. I firmly believe that we need to focus our attention on the process between the advice from the security services and whatever action the Home Secretary then takes. That is critical to the integrity of the decision making. After all, the Home Secretary is not simply deciding in his model whether to issue a control order. He is implicitly taking several different decisions. He is deciding not to prosecute. He is deciding not to carry on looking for further evidence. He is deciding not to rely only on surveillance.
	We knowat least, we are toldthat the Home Secretary will consider those alternatives, and he has repeatedly said that his preference is to prosecute when possible. The problem for the Home Secretary and for the House is that under the current proposals he has no way to demonstrate that he has considered the alternatives and chosen control orderswhether he makes them himself or applies to a judgeas the best option.

John Denham: Indeed, and each Member of the House might have to face a constituent whose son, daughter, mother, brother or father is subject to a control order asking for an assurance that it was not only an appropriate response but the most appropriate response. The current procedure would not allow us, or the Home Secretary, to demonstrate that.
	Equally, it is not appropriate to ask a judge to make the judgment between different strategiesthat is a crucial point. Judges are equipped to take a yes/no decision: they are not equipped, trained or given the remit to choose between three or four different strategies. Therefore, we need to add to the system a process to choose between the different options. That is something that we could learn from the French system, in which the procedures involving the Ministry of Justice and investigating magistrates appear to allow more proactive consideration of different options.
	My right hon. Friend the Home Secretary could make that change with limited, and possibly no, additional statutory powers. He could invite the Director of Public Prosecutions to review in every case the evidence, information and files, and to certify whether a case was prosecutable, to see whether further evidence could be gathered, or to discuss with the appropriate authorities whether continued surveillance would be possible.
	If we adopted a proposal from my hon. Friend the Member for Stafford (Mr. Kidney), a simple amendment could place a statutory requirement on the Home Secretary to examine those options and to make that part of whatever judicial process followed. Indeed, if one wished to be inventive and constructive, some judicial skills could be involved in that process. If we did that, the Home Secretary could demonstrate, for each individual case, that the alternative approaches had been independently reviewed.
	Some may argue that that option would mean a massive change in the role of the DPP in this country. However, over the past 18 months, as the Crown Prosecution Service has developed CPS charginginstead of the police always doing the chargingwe have seen greater day-by-day co-operation between the CPS and the police on the question of relevant and appropriate evidence. In other words, we have moved slightly closer to the more investigatory role that other jurisdictions have. It would be no bad thing if the DPP were invited to play that role, given adequate vetting and security.
	I think that my right hon. Friend would say, Look, as Home Secretary I receive legal advice on these cases; it is not simply a case of closeting myself away with MI5 and MI6 and having a look at the files. When I was a Home Office Minister, I never dealt with the individual cases of those held in Belmarsh, for example, but I did deal with two types of decision that are at least analogous to this one. The first involved the signing of public interest immunity certificates in terrorist cases coming before the courts, and the second involved agreeing stop-and-search powers under section 44 of the Terrorism Act 2000.
	The truth is that Ministers get legal advice from Home Office officials on PII certificates. I intend no criticism of those officials, but Ministers know that they have worked very closely with the security services in presenting the advice according to which Ministers are invited to sign PII certificates. In my experience, it was quite difficult to feel that the advice one received was wholly independent and objective, and I found going through the relevant files an extremely time-consuming process.

John Taylor: When Ministers sign PII certificates, they are not making any decision beyond deciding to put matters before a judge, who will have the last word. The Minister makes the application, and judge makes the decision in the interests of justice.

Peter Lilley: I would love to go down that line on another occasion, but there are better examples of why we should be careful.
	We should not ignore the advice of the security authorities either on policy or on individuals. We should take it extremely seriously. They are brave, honourable supporters of the state and the public interest. We should do what Ministers failed clearly to do in the case of weapons of mass destructionquestion, probe and evaluate any evidence that we receive from them before we adopt it, and then Ministers should adopt it in their own authority and not pass off the responsibility and blame on officials.
	Sadly, the Government are trying to escape responsibility for what they are doing. They are trying to escape proper debate about what they are doing. I believe that the outcome would be far healthier were the debate longer, and were we able to accept the advice from the Conservative Front Bench and prolong existing measures until we are sure that we are putting in place something that will ensure the security of the nation, which might involve some curtailment of liberties, but will, I hope, not go as far as saying that individuals can be put away on the say-so of a politician rather than an independent judicial source.

Chris Smith: As many Members from both sides of the House have observed, we must acknowledge at the outset of debates on these matters that they relate to the very difficult issue of the essential balance between public safety and individual liberty. In relation to judging where legislation should fall in order to strike the right balance, the Home Secretary has struggled with these extremely difficult and serious matters, as has the House. I spent a year of my life on the Newton committee struggling with the self-same issues in relation to the Anti-terrorism, Crime and Security Act 2001.
	We must also acknowledge that the Home Secretary has listened to some of the points and criticisms that have been made by Members from all parts of the House in recent months. I welcome the fact that he intends to discuss seriously with other countries the possibility of guarantees of fair treatment if deportation is seen as the appropriate action. I welcome the fact that he is considering a new offence of being concerned in terrorist acts. I also welcome the clear statement that he has given to the House today that prosecution with proper trial must always be the preferred choice if that option is available. The arguments put by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) in relation to that and the need to strengthen that proposition are well made.
	Above all, I welcome the fact that the Home Secretary, in response to the Law Lords' Belmarsh judgment, has sought to introduce a range of charges and penalties that can be imposed so that a particular threat can be met with a proportionate response. That must be the right principle to adopt.
	As is the Home Secretary's wont, he has listened to a lot of what has been said to him, he has considered carefully the points that we made in the Newton report, and because he has made progress on these matters, I do not intend to join the Opposition parties in the Lobby tonight, but I fear that I cannot join my right hon. Friend in the Lobby either because I remain very concerned about certain aspects of the Bill. I have one overarching concern, and I want to make three more detailed points.
	The fundamental point relates to that balance between public safety and individual liberty and justice. Let us never forget that the greatest victory that terrorism can have is if it forces us to abandon the very principles of liberty, democracy and the right to justice which we are all seeking to defend against terrorism. These principles should be abandoned only in the face of the utmost and urgent necessity, when the case is utterly compelling, when there is imminent proven danger and when there is absolutely no alternative to taking that action.

William Cash: The right hon. Gentleman should recall that during the war, when there were emergency powers, there was regulation 18B, but that habeas corpus was still available. It was only because of a disgraceful case called Liversidge v. Anderson that all the issues relating to proper due trial and justice were overruled. That case has been effectively binned by subsequent decisions in the House of Lords. Habeas corpus still applied during the war in the extreme circumstances that the right hon. Gentleman has mentioned.

John Redwood: The right hon. Gentleman is making a powerful speech. Does he agree with me that, as a way forward, the Government could frame an amendment to the law against terrorism to capture and to meet their worries about people that they are detaining or wish to detain? In that way a case could be brought in court against those people for whatever it is that they have done that has led the security forces to have such fears about them. I would have thought that everybody would then be happy that due process was being followed and that people who were likely to commit terrorist attacks could be captured by the law.

Chris Smith: My hon. Friend is, of course, right. One can observe that the situation in Northern Ireland was dealt with rather successfully because a range of different approaches were taken to the issue, which, taken as a whole, provided an appropriate response.
	I said earlier that I have three detailed points of concern. First, I cannot understand the rush. In the Newton committee, we examined the Anti-terrorism, Crime and Security Act 2001 in detail and looked at how it was brought on to the statute book. Our unanimous conclusion was that it never makes sense to legislate in haste on matters of such gravity. In response to the failures and flaws of the 2001 Act, which was introduced in haste, I fear that we are introducing further legislation in haste.
	There are ways of getting round the problem of urgency, to which both the Prime Minister and the Home Secretary have alluded. It would be possible to extend the existing powers for a strictly limited period of time by agreement across the parties in this House. Especially in view of the fact that the Home Secretary has specifically said that he does not want to trigger the derogation powers that he is giving to himself in the Bill, it is surely possible to leave that element out of the Bill entirely, rapidly to process the remainder of the Bill through the legislative procedures and to return to the derogation proposals and examine them at greater leisure. It is surely better to try to get it right than to get it quickly.
	Secondly, I fail to understand why the Home Secretary continues to refuse to consider the use of intercept evidence in court. I know that the security services are against such a proposal, but pretty well everyone else is in favour of it.

Chris Smith: My hon. Friend is, of course, right to identify that many authoritative voices are putting forward that particular view.
	Using intercept evidence in court is not a wholesale solution to the problems that we face, but it would help. It is used widely in other countries, including countries such as the United States that face similarly severe terrorist threats. In the Newton committee, we received evidence that evidence derived by the UK security services through intercept in the UK has already been used as evidence in open court in other countries. Legislation permitting the use of intercept evidence could protect the use of evidence that might genuinely endanger national security. Such evidence could be used an optional rather than mandatory basis, but the blanket ban can and should be lifted.
	Thirdly, I remain concerned by the nature and process of judicial authorisation for control orders. I welcome the Home Secretary's acceptance that some judicial participation in the process is required, although what he is proposing in the Bill is limited and would occur only after the event. Imposing a control order first by political decree, and then only subsequently giving limited judicial consideration to it, runs the risk of unbalancing the whole process, because once an order is in place it is much more difficult to overturn and the burden of proof shifts with the status quo. The decision should be justified properly to a judge, even in some summary form, from the outset. I accept, of course, the issues that might arise over the speed of decision making, but I hope that, with a serious willingness to find a consensual way forward, it would be possible to derive a better system, perhaps by having a system of accredited judges on call for initial and rapid interim consideration of proposals made by the Home Secretary.
	These are difficult issues; they arise because we live in difficult times. But sometimes the apparently easiest answers are not necessarily the right ones. I hope that the Home Secretary will continue to give careful consideration to the genuine and serious concerns that many on the Labour Benches still have about the precise proposals that he has brought to the House today.

Boris Johnson: I hope that the House will forgive me if I begin by repeating some of the powers that the Home Secretary is about to take under this Bill: the power to lock someone up in their own house; the power to stop other people visiting that person; the power to remove any item of property from that person's house; the power to tag that person; the power to ask that person to surrender his or her passport, to report to a police station and to produce any information demanded of him; in other words, the power to incarcerate that person.
	These powers are to be exercised against anyone whom the Home Secretary deems to be involved in a terrorism-related activity. Such a person is defined in the broadest possible terms as, for instance, someone engaged in conduct that gives support or assistance to individuals who are known or believed to be engaged in terrorism-related activities. It is the intention to detain such people without trial for an unlimited period, contrary to the most basic principles of English law.
	Why have we come to this position? These extraordinary control orders are made necessary because of the House of Lords' ruling in December that rightly threw out part 4 of the Anti-Terrorism, Crime and Security Act 2001. The Lords pointed out that it was absurd and discriminatory to detain a foreigner and not a UK national, since many of the suspects associated with al-Qaeda are known to be British. The Lords pointed out, furthermore, that it was nonsense to say that someone could present such a threat to the life of this country that he could be detained without trial and yet could be told that he was at all times free to leave this country and go and plot against this country abroad.

Boris Johnson: My right hon. and learned Friend adverts to a relevant paradox in the whole business. It is a sign of the Government's incompetence that they have been brought to this pass, because they had a choice. At the moment of reversal at the hands of the Lords, the Home Secretary could have ceased to derogate from article 5 of the convention on human rights and ceased to detain without trial; or he could have chosen to widen detention without trial so that all UK citizens could be banged up on his say-so.

Boris Johnson: My hon. Friend is learned beyond wildest dreams in matters connected with the European Union, and he makes an entirely valid point. I do not object so much to the fact of derogation from the European convention on human rights; what I object to in this widening of the principle of detention without trial to apply to all UK citizens is that what we are talking about is nothing less than the suspension of habeas corpus. It should be a fundamental principle of our system that when the state detains a person, they have the right to trial. To remove that basic right is a step that has been taken very few times in our history. It was taken in 1793, when William Pitt removed it following the execution of the King of France and in the revolutionary terror that swept Europe, and it was removed in 1817, opportunistically, by Lord Liverpool. As the Law Lords rightly said, habeas corpus, the right to trial, is a fundamental part of our liberties.
	We do not have that right by virtue simply of this European convention; we have it by virtue of 800 years of history and enshrined in the Habeas Corpus Act 1679. In order to take it away, the House must genuinely believe that there is a threat to our way of life; in other words, that we are at war. I accept what has been said from both sides of the House about the qualitative difference posed by the threat of al-Qaeda, but I do not believe that that threat is so extreme as to justify such an extension of the power of the state.
	It is a great shame that we cannot be told more about the al-Qaeda plots that have been foiled over the past few years. But it is worth pointing out that we have all lived through decades of IRA terrorism, and more British people died annually at the hands of the IRA in the '80s and during much of the '90s than have died since 11 September 2001 at the hands of al-Qaeda. We abandoned detention without trial in 1972 because Operation Motorman, in its attempt to suppress the IRA, proved to be such a failure. Why, therefore, are we reintroducing it now, when I do not believe that we face anything like a warlike threat?
	The Government say that our ancient liberty will be protected by the role of the judge who must review the demand of the Home Secretary for certification. On the face of it, as has already been said, that is a flimsy protection. The judge merely has to decide whether the Home Secretary has information capable of constituting reasonable grounds for the Home Secretary to make a control order. I think that you, Mr. Deputy Speaker, will agree that information capable of constituting reasonable grounds is a million miles away from properly satisfying a court that a man should be locked up.

Jeremy Corbyn: Does the hon. Gentleman agree that one of the problems with that test is that the Home Secretary might indeed have reasonable grounds for believing somebody to be dangerous on the basis of evidence that is put in front of the security services, but he would have no way of challenging that, and no one else would either, even if it was proved at a later date to be completely inaccurate, but a grotesque miscarriage of justice may have taken place in the meantime?

Boris Johnson: I am grateful to the hon. Gentleman for so lucidly anticipating the very point that I was about to make. It may be relatively simple to satisfy a judge that the matters relied upon are capable of constituting grounds for a control order, but that is very different from properly testing, in the adversarial context of a court, whether the information is any good, or whether it has been laid before the Home Secretary by security services that may be either inaccurate or have an axe to grind.
	The Father of the House has already made an apposite point about our recent disappointments over weapons of mass destruction. Doubtless, it would have been possible to satisfy a judge that the matters relied upon in respect of the Belmarsh detainees constituted the ground for a control order. Yet several detainees are to be released following the Lords ruling and the Government tell us that, upon their release, they will not be suitable candidates for house arrest. In other words, they have been inside for three years, with the approval of the Special Immigration Appeals Commission, yet now that they are to be released, the Home Secretary says that they are not candidates for derogating or non-derogating control orders. How can we have any confidence that the Bill will protect the innocent when years are already being taken out of people's lives, we do not put them on trial and, when they come out, we implicitly declare that their incarceration was pointless?
	I simply do not accept the Government's argument that allowing suspects the right to trial would prejudice sensitive wire-tapping techniques deployed by the intelligence services.As my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and my right hon. Friend the shadow Home Secretary have said, it is perfectly possible to have a system whereby a pre-trial judge could decide whether details of wire taps should be made available to the full court and how to be fair to both the defence and the prosecution. That point was made by the right hon. Member for Islington, South and Finsbury (Mr. Smith), who is my Member of Parliament.

Boris Johnson: I am most grateful and I am glad that we are united on the subject of the debate. The right hon. Gentleman constructively outlined what the Government should do. He said that wire-tapping evidence should be admissible in court. It is a mystery to me that the Government reject his wise counsel. I should like to know why. I believe that they do so because, as my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) said, the Bill is a classic secret policeman's measure.
	I do not doubt the security services' good intentions. I am sure that all hon. Members agree that they have done a magnificent job in protecting us thus far from the undoubted threats that terrorists pose. However, I cannot for the life of me understand why the state feels it necessary to take new powers now. The control orders would be instantly recognisable not only to the old BOSS security services in South Africa, but to every secret police force, including Cheka, the OGPU, the NKVD and the Securitate.
	I cannot believe that Labour Members of Parliament entered politics to take away habeas corpus. I hope that the impassioned denunciation of the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore) will ring in the Home Secretary's capacious ears when he formulates the climbdown that so many of us, from all parties, hope that he will propose in the next few days.
	In a hotly contested field, the Bill is one of the worst Government measures that has been produced in my time in the House. No responsible Opposition could conceivably let it through unamended. It is reminiscent of the actions of some tottering Belgian coalition Government of the early 1970s, using the threat of terror as an excuse to enact repressive emergency measures that are never removed from the statute book. I hope that there will be a significant revolt in the Lobby tonight and that it will be joined by the right hon. Member for Holborn and St. Pancras (Mr. Dobson), who is about to speak.

Richard Shepherd: We have just heard a very important speech. Following on from my hon. Friend the Member for Henley (Mr. Johnson), I place it with the speech by the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore), who is to retire at the next election. That was a moving speech because it recounted the very purpose why we are here and the traditions with which the Labour party was most closely associated: the beliefs, rights and freedoms of the individual. Collectively, this Parliament should be asserting what is our constitutional and legal history.
	The interesting thing about the Bill is that it draws us together on two themes: our own rightsthe tradition from Magna Carta, through habeas corpus to the age of universal democracy in this countryand the protection of our rights through the quasi-separation of powers between the judiciary, the Executive and Parliament itself. In fact, the Government have stumbled not because of the traditions of this country but because of their own flagship legislation, the Human Rights Act 1998. My purpose in the few minutes that I have is to try to draw to the attention of the House why I think all this will founder yet again on the basis of that Act.
	The Bill gives the Secretary of State powers to place an individual under house arrest or place such restrictions on their movements as amount to a deprivation of their liberty. The Bill refers to those powers as derogating control orders. They are dealt with in clause 1(3)(g) and 1(4) and clause 2(1). In light of the Home Secretary's announcement that there is currently no need to derogate from article 5 because there are no individuals in respect of whom deprivation of liberty could be said to be strictly required, there would seem to be no need for the Government to take in this legislation the power to make derogating control orders depriving individuals of their liberty by, for example, placing them under house arrest.
	Since it is now the Government's position that the intelligence relating to the current detainees cannot justify the deprivation of their liberty, all the Government need to do to meet the concerns expressed by the Law Lords is to provide themselves with the legal basis on which to deal with the current detainees in a way that is proportionate and non-discriminatory. If that can be done, as the Government now say, by measures short of deprivation of liberty, there is no need, in order to deal with the current threat to the nation, to take much wider powers that, by the Government's own admission, are not at present strictly required.
	At the very least, there can be no justification for including such wide and unprecedented powers of Executive detention in legislation that is being rushed through Parliament at a speed and on a guillotine that prevents proper scrutiny in order to get it on the statute book in time to deal with those detained under provisions that are shortly to expire. Legislation passed at such speed should be confined to that which is essential to deal with the problem about to arise. The problem for the Government is what to do with the detainees if the law under which they are currently detained lapses. The Bill should be confined to that, which means that all the provisions concerning derogating control orders should be taken out of the Bill, if necessary to be returned to when there is more opportunity for careful parliamentary scrutiny.
	In any event, it also appears questionable as a matter of law whether creating a domestic legal framework that provides in advance for derogating control orders can itself be done without derogating from the European convention on human rights at the time of creating the framework itself, which would require the Government to demonstrate the necessity for having such a framework at the level of threat that currently exists.
	The Bill provides for control orders to be made by the Secretary of State that have the effect of depriving individuals of their liberty without any prior judicial involvement and without any intention of bringing them before a court on a criminal charge. The Bill does provide for automatic consideration of such derogating control orders by the High Court within seven days and requires the court to quash the order if not satisfied that the matters relied on by the Secretary of State were capable of constituting reasonable grounds for him to make a control order against that person, or for imposing an obligation amounting to a deprivation of liberty. It also provides, in all other cases, for there to be a hearing by the court. The court must conduct its own hearing and make its own determination of each of the matters determined by the Secretary of State. All that is after the event and not prior to judicial involvement in the decision to deprive someone of liberty.

Douglas Hogg: What is more, the process is imperfect because a detained person does not have access to the documents or the evidence and will not have a chance to defend him or herself against the accusations.

Richard Shepherd: I am grateful to my right hon. and learned Friend, who anticipates me.
	The degree of judicial involvement provided for in the Bill in relation to derogating control orders is unlikely, in my view, to be compatible with the requirements of the European convention on human rightsin particular, with the requirement in article 5 that any deprivations of liberty must be
	in accordance with a procedure prescribed by law.
	Other than in the exceptional circumstances enumerated in article 5(l)(a) to (f), deprivations of an individual's liberty require prior judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the European Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention. The House is familiar with all that, because it has watched over these practices through the centuries.
	The Home Secretary's reason for refusing to countenance prior judicial authorisation of the deprivation of liberty is that that would be to abdicate to the judiciary the Executive's responsibility for national security, for which it is rightly accountable to Parliament. With due respect to the Home Secretary, that is an eccentric interpretation of the constitutional doctrine of the separation of powers. It is a long-established principle of the British constitution that, outside of the field of immigration, the Executive have no power to detain individuals without prior judicial authorisation or in circumstances where it is intended to bring the individual before a court as soon as possible for further detention to be authorised.
	Both Parliament and the Executive have long accepted and respected the judiciary's responsibility for the liberty of the individual. To invoke national security to deny that role is to subvert our traditional constitutional division of powers. The Home Secretary's argument would, absurdly, apply equally to criminal justice. The Home Secretary is undoubtedly responsible to the public for protecting them against crime, but nobody would suggest that it is an abdication of that role for the Executive to accept that the courts are the appropriate constitutional branch to decide whether particular individuals should be deprived of their liberty. I hope that we will not hear any more such nonsense from the Home Secretary.
	Even if there were room for argument about the proper separation of powers in the British constitution, it is unlikelythis is where the arguments will founderthat the European Court of Human Rights would regard the exclusion of prior judicial involvement in deprivations of liberty as compatible with the convention.
	I shall leave the legal points there, but I reaffirm that this House is also a custodian of our freedoms. Everyone who votes tonight should be mindful of breaking a great trust and mindful of the fact that the Governmentthe Executive and a Secretary of Statewill be able effectively to detain us. It goes against the spirit of this country, which has a powerful belief in liberty and freedom. The Government and this Home Secretary are striking against it.

Graham Allen: This debate is about the continuing and one-sided battle between Executive power and democracy, rather than about legalisms. The power of the Government has massively increased in recent decades and parliamentary power has diminished almost to the point of being extinguished. Judicial power has often made itself distant and irrelevant, so our system of checks and balances, such as it was, has grown weaker and weaker. That is why we have come to this pass today.
	The Government are right to take measures to safeguard us from international terrorism, but Parliament is also right to insist on measures to preserve, especially in difficult times as well as easy times, the balance between security and liberty. If there is the will, in the House and in the Government, to achieve that balance, then further work is necessary on the Bill.
	Like many colleagues on all sides of the House, I start from the premise that no Executive authority or Government Ministereven one whom I know and trustshould ever be given the ability to commit an individual to indefinite detention. The right to a fair trial and proper judicial process is a sacred part of our democracy. In a democracy, that right must only ever be suspended with the consent of the judicial process.
	There are a number of ways forward on this issue. My right hon. Friend the Member for Southampton, Itchen (Mr. Denham) spoke about the Director of Public Prosecutions and about the need to make sure that evidence is presented in a way that allows a case to go forward. He also said that, if there were no case to answer, there must be a fall-back position, and I hope that the Government will explore that detail.
	In addition, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) and many other hon. Members made the point that, at present, the police have the ability to detain an arrested terrorist suspect for 14 days. If the Home Secretary wants that person to be detained longer because he has evidence that leads him to believe that that person is highly dangerous, he can within that period apply to a judge in the Appeal Court or the High Court, or whatever level is appropriate, for a time-limited detention order. We need to look at that aspect in more detail as we scrutinise this Bill. Once the 14 days have expired, the Home Secretary must go back to the judge to seek a renewal.
	Therefore, to make this bit of the Bill work, the Government have only to move from judicial review to judicial application. The difference is a fine one, but it is the difference between democracy and arbitrary power. It is a difference that Members of Parliament must be the first to recognise and advocate. If we do not do that, why on earth do we need a Parliament at all? It is our duty, and nothing less than our personal responsibility, to make sure that we ask these questions.
	As long as the Government incubus controls Parliament, they can force such matters through. No doubt that will happen again today, but some of us in the House of Commons will insist on making our death-rattle heard.

Graham Allen: Indeed, and the pressure on the Government would be even greater if this House does not draw a line now. Hon. Members must try to imagine what a Government of any political complexion would be forced into if there were to be an atrocity on the scale of 9/11 in the UK. However, that is not to excuse any Member of this House from seeking to help Government find a way to resolve this very difficult and thorny problem. I hope that colleagues, and above all the electorate, will never forgive any hon. Member who makes political capital out of this problem.
	We have witnessed today the extraordinary constitutional innovation of do-it-yourself pre-legislative scrutiny, which I welcome. If the House has any role whatsoever, it is to examine legislation before it is passed by the Houserecently that has been very much in evidence in the area of criminal justice. I worked with the Home Secretary on student fees, and it is in his character to be open to ideas and influences and to seek to create better law. He deserves every credit for that, but would we not all have benefited if pre-legislative scrutiny were more protracted and considered than has been the case with our deliberations on the Floor of the House today?

Graham Allen: If the hon. Gentleman waits for me to exert my influence on my Front-Bench team, he may be in for a very long wait, but I commend it for its open-minded approach to the issue and for listening. That may not have been the case previously, and I congratulate the Home Secretary on the way in which he has conducted the informal pre-legislative scrutiny. It is welcome and I look forward to a slightly more formal approach after future Queen's Speeches.
	The power that the Government seek to arrogate is necessarily extraordinary, given the threat that we face. Our democratic response must be equally extraordinary. A one-club policy of containment of international terrorism will not suffice any longer. We need not only the proper involvement of the rule of law, which I hope can be achieved by hon. Members contributing to the progress of the legislation, but also the involvement of the legislature both pre-legislatively and post-legislatively. Given the relatively small number of cases13 people, I understand, have been taken to Belmarsh in a three-year periodit is within the wit even of this demoralised and dragooned place to organise some parliamentary oversight. It is a shame that we have to fawn and beg the Government to do what is the rightful duty of most other democratic legislatures in the world.
	Hoping for favours from a benign Government or personality, or for obstruction from an illegitimate second Chamber is not, frankly, a substitute for a sustainable strategy to defend our liberties in these difficult times. I hope that people who aspire to lead their parties and our country will not only talk about rights and responsibilities but have the confidence to share them with all our people by putting them down in a written constitution for all to see. What is good enough for the European Union and what Iraqis in their hundreds have been prepared to die for in recent weeks must, surely, find a place in our own country. Today demonstrates again, for those who need it, how flimsy and pathetic are the defences of unentrenched rights in the United Kingdom. A written constitution would define our historic rights and social responsibilities and, incidentally, make clear the emergency powers necessary to defend those liberties from the extraordinary threats that we face today.
	I hope that all parties can see that crisis management of Parliament and the media must give way to a more thoughtful and inclusive strategy. I hope that this is the day that we start to realise that British democracy and politics cannot be defined as what happens between No. 10 and the media, but must involve an independent Parliament, a separate judiciary, a legitimate second Chamber and, above all, citizens who understand their rights and responsibilitiesin other words, an effective, active and healthy democracy, which is what terrorists and fundamentalists fear the most.
	The issue has again highlighted some of the starkest failings of our political system. Just when strong, independent legislative scrutiny of a Government extending their powers at the expense of our liberties is most needed, it is missing. Just when a clear, written constitution should be providing the parameters for resolving the terrible dilemmas between the safeguarding of our rights and our security, it is absent. Just when we need separation of powers so that those who exercise governmental power are not the same people who should be holding them to account, it cannot be found. None of those fundamental flaws in our political system has been addressed by my Government during the past seven years. None has been considered important and may not be considered important today.
	I hope that the lessons of today are not lost when the crisis blows over. We are entering an era when such dilemmas will become more common and acute for all of us. Without checks and balances, what could come next, not from this Government but from a future one under the auspices of other people? What action might be contemplated by a future Government in a British 9/11 scenario? There cannot be more serious problems to be faced by all of us in this Chamber. We need to prepare our democratic structures and democratic response now for such eventualities. We should not make them up as we go along, although I have appreciated the flexibility from Ministers today.

Malcolm Bruce: As we have heard in all speeches from both sides of the House, and as I said in my intervention, the Home Secretary is between a rock and a hard place. It seems that the only way in which he can resolve that is to accept the principle of judicial decision. Listening to this debate, knowing that it will be taken to another place, and with the time constraints on the Government, it is difficult to see how we can fail to get from that point to where we want to be. The question is, why are the Government making it so difficult and painful to get to a point that can unite both sides? My hon. Friend the Member for Winchester (Mr. Oaten) made a constructive speech and indicated a willingness to try to ensure that the legislation works, but that fundamental principle must be conceded before anything can flow to an all-party agreement.
	I speak as a member of the Parliamentary Assembly of the Council of Europe and of the Legal Affairs and Human Rights Committee; I am also the rapporteur on political prisoners, about which I might say something more shortly. I am left with the question of why the United Kingdom, alone among the 46 members of the Council of Europe, seeks a derogation from article 5 of the European convention on human rights and wants the right to lock up people indefinitely without trial. Why do not other Governments wish to do that, and especially the Spanish Government, given the atrocities that their country has suffered? My first question is: why do we alone feel the need to do that?
	In fact, the Home Secretary has suggested that he does not want to do that. He has told us that he is trying to divide his Bill into two sections: derogation and non-derogation. To derogate or not to derogate, that is the question. But he also acknowledged that even non-derogation powers could be challenged, and they probably will be. They certainly will be if they are combined cumulatively under the European convention on human rights. In reality, there are not two categories but one. That said, one category will definitely be challenged, and one will probably be challenged.
	It is also important that we do not become too narrowly concerned about the Human Rights Act 1998. It served British citizens well because it dealt with the remoteness of the European convention on human rights and the Strasbourg Court by bringing them closer to us and by making them accessible through our own judicial process. Those who did not like the Law Lords' decisionthat might include the Governmentknow perfectly well that it was based on their interpretation of what the Strasbourg Court would have decided, had the matter gone before it. That was what they were obliged to do.

Richard Shepherd: The hon. Gentleman is making an extraordinarily good case. On the comparators, we are a common law country; that is what our law is founded on. The observation that so many make is, How is it that the other common law societies that we respectthe United States, Canada, Australiahave not found it necessary to take these extraordinary measures?

Malcolm Bruce: I am very happy to accept that intervention because, in a sense, it complements the point I am making. We were, after all, co-authors and founder-signatories of the European convention on human rights, and we put some of our principles at the heart of it. I do not want to go down this road, but it worries me that people say, Let's repeal the Human Rights Act. They fail to recognise that that would not change anything other than the practice of accessibility; it would not change the law itself. However, that is by the bye.
	As I said, I am the rapporteur on political prisoners in Europe, and there is a point at issue that we should recognise. We are rightly concerned about what we are doing for British citizens and residents, and obviously that is what this Parliament is fundamentally about. However, we are also part of an international community and we should consider how this Bill looks from outside. In keeping with the intervention of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), how does it look when a country such as the UK feels the need to take these powers when other countries do not? What kind of example does that set?
	I have twice had to visit AzerbaijanI will visit it again next monthto try to secure the release of political prisoners whose imprisonment has been identified by the Council of Europe as incompatible with its obligations. I have also reported on the developing situation of political prisoners in Russia, and I refer to the case of Svetlana Bakhmina to highlight the abuse of power. She is a lawyer and Russian citizen who left this country after a meeting in London and was arrested within 24 hours of returning to Moscow. She was taken into custody, while her young children were left abandoned, and she was subjected to physical force that put her in hospital. Two months later, she is still being detained by the security forces without any charge or evidence being brought. We must remonstrate with the Russians and point out that that is not the way for countries that are signatories to the European convention on human rights to behave. How will it look if we pass this Bill and lock up people without providing the proper process of judicial balance and evidence and the right to have their case tested? I do not believe that we will have the authority or credibility to argue that case. Such behaviour will seriously undermine what we stand for.
	When the Home Secretary indicated that he had no intention of seeking an extension of the existing powers, I wondered whether that was because he knows that they will be challenged. That the derogation is an absolute right is not the case; it is subject to certain tests that can be challenged. However, if the Home Secretary is saying that he has no intention of seeking an extension, although the Conservatives suggest that he should, he is putting himself in a position where the time scale within which we have to operate will be extremely short.
	I hope that Ministers will take note of the tone of the debate. I notice that only one Member on the Government Benches has so far indicated the intention of voting for the Bill. Of course, people come to these debates to express their views, but there seems to be a paucity of Labour Back Benchers queuing up to give the Government their support.
	None of us underestimates the need to address international terrorism. I do not think that we want to challenge the integrity either of Ministers or of the security serviceswho have access to information that they cannot shareon the need to take such action. I hope, however, that they will accept that this is a mature Parliament and that even if the information cannot be shared with us, we must be satisfied that the process is fair and objective. People have the right to hear the charge against them and to defend themselves. The decision must be taken by an independent, impartial court. I want to make a provocative point, but it is real. If somebody is put into detention without trial by a Minister, we cannot avoid that person being described as a political prisoner.

Robert Marshall-Andrews: I have been listening to my hon. Friend with considerable admiration and respect. Will she apply her deep knowledge of the matters about which she speaks to clause 1, and especially the provisions in paragraphs (a) to (o) of subsection (3), which set out in detail the restrictions that could be put on people through a non-derogation order? Does she agree that they bear an extraordinary and chilling resemblance to the Pass laws in South Africa?

Douglas Hogg: The House has listened with respect and great interest to the speech made by the hon. Member for Stevenage (Barbara Follett). She brings to the debate a knowledge of the affairs of South Africa while she was living there, and I have no doubt that that has influenced her judgment and what she said. Incidentally, although I shall return to this point later, I suspect that such knowledge influenced the view of Lord Hoffmann when he made his important speech in the Belmarsh judgment, which I commend to the House.
	In one sense, this is an extraordinary debate. To start off with, the House proposes to give Ministers the power of administrative detention, which we have condemned in every other country where it is exercised: for example, Zimbabwe, Burma and Israel. We are proposing to abandon principles that have governed our constitution and legal practices at least since the days of the Stuart kings. We propose to do so in a debate that will last two days. Incidentally, there is one other curious aspectwe are addressing this matter in this way because of the judicial interpretation of the European convention on human rights, which was incorporated into British law to protect human rights in this country. Bizarrely, it is having a contrary effect.
	Another extraordinary thing about this debate is the high degree of agreement between the Back Benches on both sides of the House. May I say to the Government that when there is such unity it behoves them to listen carefully to what has been said, notwithstanding their majority?
	I am conscious that other Members want to speak. Furthermore, many of the points have been made with great eloquence. I shall therefore focus briefly on four issues: first, the principle of what is involved; secondly, whether there is a need; thirdly, the purported safeguards; and lastly, process.
	First, on principle, at the most extreme we are talking about administrative detentiona form of indefinite imprisonment. In relation to the less extreme form of judicial control orders, we are talking about something less. None the less, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) said, it is a process that will destroy people's livelihoods because they will be denied the ability to work, to associate and to have access to their friends. All of that is at the say-so of a Minister. I find that wholly offensive. Ministers should not have those powers. On that point, I am wholly immovable.
	Another question of principle arises as to whether such sanctions should be imposed otherwise than after a conviction for a substantive offence. My strong presumption is that such things should be done only after a conviction for a substantive offence. Yes, I will listen to the arguments, and it is possible that I could be moved on that point, but only were there to be a full judicial process. I shall return shortly to a point made by my hon. Friend the Member for Beaconsfield (Mr. Grieve).
	The truth is that the powers that we are conferring on the Government are sought in a democratic state only in the direst and darkest days of war. That is not today, whatever other perils we face. Otherwise, they are the kind of powers that are usually sought by dictators to practise tyranny.
	Secondly, on the question of need, I do not come blind to this debate. I have practised at the Barand still do sofor nearly 40 years, now almost exclusively at the criminal Bar. I also have some relevant experience in government. For two years, I was an Under-Secretary at the Home Office, with responsibility for the terrorism legislation then carried through, and I necessarily had some dealings with the security services. For five years, I was a Foreign Office Minister with a close relationship with the intelligence services and GCHQ, and was very familiar with the kind of considerations that underpin the anxieties now being expressed by the Government. I very much doubt whether there is a justification for what the Government are asking us to do.
	To start withthis is a bizarre factwe are considering the Bill not because the security services have told us that there is a security need, but because the House of Lords, in the Belmarsh judgement, told us that we could not make a distinction between citizens and non-citizens, and that is a very different matter.

Andrew Dismore: There may be people who are supporters or advocates of al-Qaeda, but that does not necessarily mean that they are directly associated with or involved in terrorism such that they would fall within the powers in the Bill. From my discussions with people in Scotland Yard and elsewhere, I believe that that is the sort of number they are looking at.
	The preference is to try to put people on trial in court. There have been 701 arrests, 119 people have been charged under the Terrorism Act 2000 and 135 have been charged under the general criminal law with murder, grievous bodily harm and firearms, explosives and other offences. There are trials under way, but one of the problems is the reporting restrictions, which mean that nobody really knows what is going on.
	One trial has been going on for six months and is expected to last for some time yet, but most people in the House today would not even know of its existence; I understand that another trial is to start on Monday, and again we will hear little about it; and further trials are due to take place throughout the year. I think that the Metropolitan Police Commissioner was right to criticise the extent of the reporting restrictions imposed by the courts and the Attorney-General on some of these trials. Yes, of course, we have to ensure that those involved have a fair trial, but some of the blanket restrictions that have been imposed are counter-productive. We need to be able to explain to the public what is going on to remind people of the particular problems that we are trying to deal with. If, for example, the Muslim community were aware that people are not simply being locked away and forgotten about, but are being put on trial within the correct process, they would be reassured that people do have the benefit of due process through the courts.

Andrew Dismore: No, I am not saying that. I am illustrating the fact that the system has gone out of its way to put as many people as possible on trial, with correct charges under the criminal law, but inevitably there will be some people against whom there is a strong case but where the evidence is not admissible in court, or can be put into court only in circumstances that would severely compromise its source, so that they simply cannot be put on trial.
	For example, I agree with the Opposition that we need a new offence of acts preparatory to terrorist activities. That is essential, because at present the prosecution authorities face a real problem in trying to bring some of those activities within a conspiracy charge. Shoehorning into conspiracy charges some of the activities that we are talking about gives rise to the defence that the agreement to commit the criminal act has not been sufficiently formalised. Not having the kind of law that we need opens up a line of defence to what are potentially quite serious acts. If we were to amend the criminal law that would give greater opportunity to bring more proceedings.
	I also do not agree on the question of intercepts. I fully understand what the Home Secretary has said about that, and he makes a powerful case, but to say that intercepts would be of no use whatever in any case, or would compromise the methodology in every case, is wrong. It would be appropriate to allow intercept evidence to be used, but only if it can be used safely. It is not the panacea that many people think it is. It cannot be used in every case, and there is the problem of interpreting the intercept evidence to the juryfor example, proving the context, and what was actually said usually means something quite different. But intercept evidence that is in the public domain in relation to the cases arising from the kidnapping of tourists in Yemen, which has been printed in the newspapers, would have been quite powerful in dealing with one or two of the individuals involved.
	I was impressed by what my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) said about whether the judges or the Home Secretary should make the decision. I would question whether the judges would feel comfortable about making those decisions in the first place. Their role has always, rightly, been to consider the interests of the individual. It is for the Home Secretary to consider the interests of us all collectively. The risk of this approach would in many ways be to let the Home Secretary off the hook. The blame would be passed to somebody else if a particular control order was not imposed by a judge, but the person concerned went on to commit serious terrorist acts. The judges are good at judicial review of administrative decisions; I do not believe that they are very good at making them.
	There are risks of miscarriages of justice. Whether it is a miscarriage of justice or a miscarriage of administrative decision may be a semantic argument, but the consequences in these circumstances of a miscarriage are far less than the prospect of someone, as we saw in the Guildford case, being imprisoned for 10 or 15 years. The risk of wearing a tag for months or years is far less.
	To move on to some of the practicalities of control orders, of course they will not be as effective as detention has been in dealing with some of those individuals. There is the risk of absconding, as I mentioned in the case of Abu Qatada. There is the risk of breach of the orders and trying to enforce the prosecution that would follow from that, to which I will return. There is also the risk of what might be called mission creep, and wider use of the control orders than has been seen in the use of the powers to detain. The powers of detention are the nuclear option of dealing with terrorism. They are so severe and draconian that they have been used sparingly. However, lesser powers carry the risk of being used more frequently. I should like assurances about that.
	There is a major question about resources for operating the new system, which will be harder for the police to manage. I question whether conventional surveillance is a practical proposition, given the number of people involved. The balance between technology and manpower for surveillance will have to be examined. We must also consider the extent to which monitoring is covert or overt, and the extent of tagging. I would be worried if an outsourced company monitored tagging, as has happened with some tagging of ordinary criminals. I should like an assurance that if tagging is to be used, it will not be outsourced. We must guard against that.
	Clearly, all subjects of control orders must have their own case officer. An individual risk assessment will be required and resources will also have to be assessed. I should like an assurance that the Home Office, not council tax payers, will provide the additional resources that the police services involved need to carry out the extra duties. For example, the provisions could place a large burden on the Metropolitan police, who have borne the lion's share of anti-terrorism law so far. That will apply especially in the case of an alleged breach of a control order, which will be resource intensive to investigate. The criminal standard of proof will apply and there will be a need to ensure that the evidence brought is admissible.
	We must recognise that the sort of people with whom we are dealing have been well advised in the past. They sail close to the wind in some of their activities. It is fair to say that they have run rings around the authorities in many respectsone has only to consider the activities of Abu Hamza and Omar Bakri Mohammed to understand how they have brought the authorities into disrepute. There is little doubt that they will push orders to the limit and possibly beyond. I want to be satisfied that the Home Secretary believes the orders to be sufficient to ensure that those involved cannot incite and foment extreme views, as has happened in the past.
	We should consider the impact of control orders on community cohesion. The police could operate in a difficult environment if the local community is either supportive or afraid of the subjects of the control orders or their followers. That could affect co-operation with the police, especially in relation to the subject of the control order, or more widely, in the fight against terrorism. There could be a much wider impact on local policing and its relations with minority communities.
	The police will also have to protect the subject of the control order from possible victimisation. There have been examples of that in cases involving paedophiles, who have been subject to appalling victimisation. I suspect that those subject to control orders in their homes may face similar problems. There may be an impact on policing levels in local boroughs in London and operational command units elsewhere if the local police service is called on to provide part of the service. I hope that the Home Office will go out of its way to ensure that proper resources are provided for that.

Elfyn Llwyd: I speak on behalf of Plaid Cymru and the Scottish National party.
	Yesterday's exchanges revealed that the Government's perception of the level of terrorist threats is, according to the Home Secretary, relatively unchanged, as it has been over the past two or three months. The impetus for the Bill is, I think, either the Belmarsh judgment or political necessity. I believe that its timing owes as much to the political calendar as to the scathing, and correct, judgment handed down by the Judicial Committee recently.
	I have read Lord Carlile's report and its conclusions. Conclusion 8, on page 37, states:
	Lessons can be learned from the Anti-terrorism, Crime and Security Act 2001 detention provisions to enable new laws to be subject to a fair and acceptable system of law . . . including a more developed special advocate procedure and tribunals with a lay element.
	Those of us who do not sign up to the Government's perception of threat from terrorism, or at least the degree of that threat, none the less accept that there is a level of threat, and therefore endorse what Lord Carlile says in his considered and balanced report.  I believe that the Bill conflicts directly with that conclusion. Far from attempting to introduce a fair and acceptable system, the Bill will do the opposite.
	Briefing notes from Libertyproduced, obviously, quite rapidlyrefer, in paragraph 8, to restrictions on liberty being permissible only with a view to some form of criminal disposal at the end of the day. It goes on:
	To be lawful they can only be used to detain or restrict someone with a view to bringing them to trial, to stop them committing an offence or from absconding after committing an offence.
	That refers to article 5 of the Human Rights Act 1998.
	Once detained they must be brought to trial within a reasonable time or released.
	That is in article 5(3) of the same Act.
	Restrictions such as tagging and curfew are established practices in criminal law. They are imposed as bail conditions by police or courts to ensure that, for example, a defendant attends court.
	Obviously what is meant is that such restrictions are part of a larger judicial process, and are not an end in themselves.
	The Bill gives the Executive, through the Home Secretary, powers that have always resided with the judiciary, and with good cause. The whole issue of the constitution and the separation of powers is involved in this debate. Everyone accepts that there is a need for the separation of powers. A few weeks ago, in a debate in this place, many Labour Members argued that that was a sacrosanct notion, to be applied even to prevent Members from sitting in a judicial capacity. It was, I suppose, a good argument, but none of those siren voices are here today. The new Labour ranks are pretty thin on the ground. The loyalists who argued that case a fortnight ago have gone to earth.
	Today, though, we are dealing with a far more serious mattera far-reaching matter. The Bill will enable the Home Secretary to impose sweeping and far-reaching infringements of liberty on the basis of mere suspicionalbeit reasonablethat an individual is or has been involved in terrorism or terrorism-related activity. What evidence will the Home Secretary have to present to prove that suspicion? It will be evidence produced by the intelligence services.
	One of the salutary lessons of the Iraq war is that intelligence briefing alone, and its subsequent interpretation by politicians, often lead us to very wrong conclusions. Mere suspicion has never had any standing in any legal proceedings hitherto. Reasonable will be subjective, and will hardly constitute a safeguard in the circumstances.
	Clause 2 allows the Home Secretary to derogate from article 5 of the Human Rights Convention if he is satisfied, merely
	on the balance of probabilities,
	that a person has been involved in such activity. In other words, the civil burden yet again makes it easier for the Executive to ride roughshod over the individual. If it were ever justified to deprive an individual of his or her liberty in that way, the standard of proof should be far higher. In this instance, the Executive are exercising powers hitherto exclusive to the judiciary, who have always in criminal cases been subject to the higher and safer standard of beyond reasonable doubt. That is a major concern.
	Clause 8 deals with appeals relating to derogating control orders. Subsection (1) refers to where there has been a modification of an order
	without the consent of the controlled person.
	Perhaps in due course the Minister can tell the House where she sees actual consent being given by the controlled person. In what circumstances will that happen? I also ask for confirmation that, in the appeal process, the person will be entitled to legal representation of his or her choice and that legal aid should be available.
	Clause 9, which relates to appeals in respect of control order decisions, states that no appeal shall lie against the decision of the court
	except on a question of law.
	That again is problematic, because, under paragraph 4 of the schedule, the Executive can make up their own rules of court and can
	make provision about the mode and burden of proof in control order proceedings and about evidence in such proceedings
	and
	enable or require such proceedings to be determined without a hearing.

Alistair Carmichael: The hon. Gentleman will be aware that, in Scotland, the subject of rules of court is properly the domain of the Scottish Parliament and the Lord President, who is normally the senior judge responsible for their construction. Does he share my concern that there has been no opportunity for the Scottish Parliament to express a view on that matter and that, at the very best, the Government are blundering into a constitutional grey area?

Tam Dalyell: To grasshopper back to the position in Scotland, I think that we should take account of page 13 of the Bill, which states that
	in relation to proceedings relating to a control order in the case of which the controlled person is a person whose principal place of residence is in Scotland,
	the court
	means the Outer House of the Court of Session.
	It is my understanding that the Scottish authorities agreed to this. Whether it was a Sewel motion or not I do not know, but I understand that it was agreed.

Elfyn Llwyd: I am grateful to the Father of the House for enlightening us on that point, which is extremely important in the circumstances.
	Therefore, in reality, the proposed appellant could not mount an appeal. That right is illusory.
	Paragraph 4(2)(d) of the schedule refers to a provision to enable the relevant court to supply a controlled person with
	a summary of the evidence taken
	in his or her absence.
	Who decides whether that summary is accurate and full? How can we ever know that? That is a crucial point, as it was when taped interview summaries were first brought in through the Police and Criminal Evidence Act 1984. It is vital that full and accurate summaries are produced in these circumstances. Who can test whether the summary is right? I am afraid that the provisions seem designed to introduce courts only of the marsupial varietythe ultimate example of kangaroo justice.
	Tucked away in paragraph 4 of the schedule is the right of the Home Secretary to prohibit disclosure of evidence to the party concerned and his or her representative. There may be circumstances, I suppose, where that could be necessary, but I am worried that it will become a standard and widespread practice. Paragraph 6 gives the Executive the right to prevent a person from being legally represented. Once again, that is contrary to anything that anyone would consider as fair jurisdiction and, indeed, it breaches the equality of arms principle in the convention on human rights. That is most worrying, and no doubt the so-called rules of court will be framed in order to make life very difficult for the individual.
	Reference is also made to special representation in control order proceedings. Paragraph 7 states:
	The relevant law officer may appoint a person to represent the interests of a relevant party to relevant proceedings in any of those proceedings from which that party and his legal representative (if he has one) are excluded.
	What on earth does that mean? A representative is appointed to act on someone's behalf, but that representative has no contact and no dialogue whatever with the controlled person. How can such a lawyer do a reasonable job on behalf of the controlled person? It is an absolute disgrace.
	Following the resignation of Ian McDonald, QC, and Rick Scannell as special advocates, Lord Carlile, QC, said in paragraph 78, page 30 of his report:
	There must be factual issues, about where the detainee was and when, or about the reasons for association with certain persons, on which direct discussion with the detainee or his private lawyers would assist in the doing of justice. I believe that such contact, on a careful basis, would meet many of the concerns expressed by Mr. McDonald and others.
	That bears heavily on this particular point, but what have the Government done? They have flown completely in the face of that wise counsel. I do not believe that the Government have given any weight whatever to Lord Carlile's advice, even though he is a pre-eminent legal practitioner. That is most unfortunate. He is trusted, after all, with the oversight of terrorism legislation.
	I referred earlier to the Liberty brief, which I cite again:
	In February 2004 six special advocates wrote an open letter to the Home Secretary expressing concerns at plans then circulating.
	The issue of reforming the current Special Immigration Appeals Commission trials was mentioned. The brief continues:
	We are convinced that both basic principles of fair trial in the criminal context and our experience of the system to date make such a course untenable. It would contradict three of the cardinal principles of criminal justice: a public trial by an impartial judge and jury of one's peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case made against the accused. The special advocate system is utterly incapable of replacing these essential fundamentals of a fair trial.
	Those essential fundamentals of a fair trial are all missing from this Bill. It is a bad Bill and a dangerous one. It has no place in our democracy or in our constitution. It will make bad law and I am afraid that it may well make matters worse and fuel the flames that it attempts to extinguish.
	I do not know whether the Bill is part of a political game, but I believe that good sense in the other place will dispatch it as it deserves. It is incapable of amendment, and we in Plaid Cymru and the Scottish National party will vote against it without hesitation.

Robert Marshall-Andrews: As with everything in life, this Bill has both form and substance, and I shall deal first with the form. The Bill is small but deeply imperfectly formed.
	In part, the Bill is incomprehensible. I have been reviewing statutesmany of them criminal statutesfor 35 years, and this Bill is one of the worst, despite its brevity. I spent one hour and 20 minutes attempting to understand clause 4 alone. That clause deals with the duration for which people can be detained under the control orders and is therefore not unimportant, but I completely failed to understand it, even though I was reading my own language. If it had been translated into Arabic, Hindi or Gujarati, the problem would be even worse. We in this Chamber will no doubt argue about the effect that the Bill will have on al-Qaeda, but one thing is certainthey will not understand it.
	So much for the Bill's form; I now move to its substance. If its form is bad, its substance is truly dreadful. It is almost certainly one of the worst pieces of legislation that any Government have attempted to put through this House for 200 years. It offends against the cardinal and root principle of our democracythe separation of powers and the independence of the judiciary.
	That principle is not a tributary of democracy, or a bit or part of it. It is what democracy is, and it is fundamental to our system, as it is to all systems of democracy that ultimately derive from revolutions of the people. The constitutional liberties in the US, France and this country are all based on that principle, which was first enunciated by Montesquieu and subsequently taken up by Paine and Jefferson. Their names will resound through the annals of political democracy and liberty when the names of those who are trying to take democracy away from us will be no more than dusty footnotes in the unpleasant history of this era of Parliament.
	The principle of judicial independence is under attack in this country, but it is interesting to note that there is an attempt to introduce it into the Russian constitution. I was recently in Russia to give a lecture on the principle and I have given four such lectures in the past year. The Russians approach the notion of judicial independence much as they would approach a yeti or an abominable snowmanthey understand that some people have seen such a thing, but they do not really believe that it exists.
	The Russians with whom I had dealings listened to me with respect and longing, but on my most recent visit I told them about this Bill. For some time afterwards, the wonderful people with whom I was sitting had their arms around me in commiserationadmittedly, after a few vodkasfor the loss of liberty and the mistakes being made in my country.
	The weakness of the Bill is made even greater when a legislature is as supine and ineffectual as this one is. In the brief time that I have been in this House, Parliament has gradually given up any hope of carrying out its major role of acting as a control and check on the Executive. That inability was brilliantly set out earlier by my good and hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). That will be his last speech in this place, and he could not have made a greater one. This may be my last speech too and, if it is not, it will not be for want of trying. If it is, I echo what my hon. Friend said: one of the great sadnesses that I will take away from the Chamber is that I have watched it become a Lilliputian assembly. In my time here, it has manifestly failed to act as a check on an over-mighty and increasingly arrogant Executive. There is no greater example of that than what we have witnessed in the course of this debate. For the Home Secretary to say that it is his responsibility to put people in prison and that he will arrogate that responsibility, and then to say that he will take a judicial function that will be subject to a judicial overview is not simply constitutionally illiterate but parliamentary drivel, and it should be treated as such by everyone who had the misfortune to hear it.
	May I say three things in the brief time available, provided that no one is decent enough to intervene? Much adulation has been heaped on the present Home Secretary, some of which is richly deserved. However, even if he were the most wonderful, beautiful, benign and wise judicial body, even if he had a reputation for Solomonic justice and Brechtian wisdom, it would not matter a fig. It would be a terrible mistake to hand judicial powers to the Administration, given that there are at least three examples of the dereliction of those powers.
	The first, of course, is Belmarsh itself. We are told that, after three years, the 13 people who have been held in that ghastly prison, with its 30 ft walls and razor wireI know, because I have been there on many occasions myselfare to be released, not into house arrest but on to the streets with tagging or non-derogated orders.

Robert Marshall-Andrews: It is wonderful how the right hon. and learned Gentleman manages to anticipate almost the precise words that are about to fall from my mouth. In the past three years, successive Home Secretarieswell, mainly one Home Secretaryhave repeatedly told SIAC that those people are so dangerous that they cannot possibly be released from the misery and solitary confinement in which they have been interred. Now, they are all to be let out, because repentance is a wonderful and beautiful thing. Perhaps they have repented, but the idea that they have done so simultaneously would represent the greatest collective apostasy since St. Paul's letter to the Corinthians. It is clear that SIAC has been misled for the past three years about those people in Belmarsh. The new Home Secretary, however, has taken a different view, which demonstrates the arbitrary nature of the power that the Government are attempting to achieve.
	Secondly, much adulation has been heaped on our security services and I am certain that some of it is deserved. However, the Iraq war is fresh in our minds, along with the duplicity, lies, twisting and distortion of the security services' manifesto. We all know what happened: the information that the security services gave the Government was manipulated before it was placed before the people. The second dossier created on the basis of that intelligence destroyed forever people's faith in this and probably any Government's purveying information accurately and using it in a judicial or any other capacity. That is why Home Office briefings have been received with such contempt both inside and outside Parliament. They are perceived as worthless documents because no one believes the construction placed upon them.
	Thirdly, we have every reason to distrust the measure because British subjects will be placed under its aegis as a result of the rulings, speeches and opinions of the House of Lords. Is it coincidental that, when the Law Lords provide an opinion, there are suddenly risks from British subjects? Were there were no risks from them before that? If there were, why were we not told about them? If there were grave risks before that, why did someone not come to Parliament and say so? The Bill is a gross manipulation and distortion of the Law Lords ruling.
	I struggled to find a harmless analogy for what the Government are doing. The best I could come up with is that of a boy who is viciously bullying some people at school, all of them girls. He is hauled up before nine school governors who tell him that he must stop it. He says, Fine, I'll stop it. I'll cut out the vicious bit and bully everyone. That is precisely the way in which the Government have reacted to the House of Lords judgment. The analogy is harmless and I hope that the point is not lost, even on the Home Secretary.
	The substance of the Bill is the supposed effect of judicial overview. I shall say slowly, clearly and distinctly, in case anyone on the Front Bench is listening to what is being said in this House, that there will be no judicial overview as to the fact of the vast majority of the control orders that are envisaged in this Bill. That should be repeated. There will be no factual judicial overview of any of the control orders that affect the right to work, the right to travel, the right to associate, the right to be seen in a specific place, the right to move, the right to have a passport, the right to be with specified people, the right not to be tagged, and the right not to be electronically monitored. For all those control orders, there will be no judicial overview as to fact. If people in this country realised that, their reaction would be very different from what we are told is the popular reaction at the moment.
	There will be greater judicial overview of house arrest, but, as has repeatedly been said, those who seek to challenge it in the courts will be bereft of and denied by statute all the information, disclosure and discovery that they need to put before a judge, because the Government have decreedI pointed the relevant clause out to the Home Secretarythat they do not have to disclose that material to anyone. What is more, even if someone achieved their aim and the court decided that the decision was flawed, they could be re-arrested on another control order the minute they walked out of the door. That process was refined in South Africa time and again under the 108-day rule.
	While referring to South Africa, I pay tribute to the wonderful speech of my hon. Friend the Member for Stevenage (Barbara Follett). I shall remember it for a long time after I leave this place.
	The procedures that the Government propose to put into effect can be found at the end of the Bill. The Government have arrogated to themselves the right to create rules covering evidence, the burden of proof, lack of evidence, and the amount of disclosure. Those completely new rules of court will be introduced by statutory instrument and without proper consultation or scrutiny in this House.

Robert Marshall-Andrews: I can, but it would take me a couple of hours. Very briefly, let me tell my good and hon. Friend that, under the present criminal justice system, it is implicit that the prosecution, if in possession of any factual, documentary or other material that might assist the defence, must disclose it to the defence.

David Trimble: The hon. and learned Member for Medway (Mr. Marshall-Andrews) referred to the vigour with which the Home Secretary introduced this debate, and I think that he meant that critically. We would normally refer to the Home Secretary's vigour, which was very much on display today and yesterday, with approbation. We can contrast that with the manner with which Northern Ireland affairs are dealt; indeed, that contrast was very apparent yesterday. However, having said that, I am not entirely happy with the Bill for a number of reasons.
	As several Members have said, there is no need to rush through the Bill in this way. The Prime Minister said this afternoon that that was necessary because the Government had to act after the House of Lords' judicial ruling. No, they did not. The Human Rights Act 1998 was drafted in such a way as to enable Parliament to disregard rulings made under that Act if it so wished, and that could be done in this case. Furthermore, as was pointed out, given that the Home Secretary said that he would not introduce derogation control orders, other parts of the legislation could have been proceeded with and we could have left consideration of this matter in greater detail for another day. There was no need to rush through this legislation.
	I am also not happy about the content of the Bill. First, I am unhappy about the breadth of the control orders. Other Members have already referred to issues relating to paragraphs (a) to (o) in clause 1, and reference has also been made to the moving speech of the hon. Member for Stevenage (Barbara Follett). Her experiences in South Africa demonstrate the impact that orders of this nature can have. There is also a practical point that I raised in an intervention on the Home Secretary. I am unclear how these orders will be enforced. Reference has been made to tagging, but tagging merely helps to identify where a person is; it does not identify his activities.
	It will not be possible to enforce these control orders without a massive operation by the police and the security services. There will have to be surveillance of people who are subject to such orders and that will take up a tremendous amount of time. That will not be surveillance of people who are active in terrorist organisations, because once the control orders are imposed, that will reveal to the organisation that the authorities are aware of that person and they will probably cease to be active within that organisation. Therefore, we will be devoting a great deal of resources to monitoring someone who is no longer the threat that they once were. The terrorist organisation will then recruit someone else, whereas if we merely maintain surveillance, we would be watching someone who was active, so we would be using our resources much more efficiently. Unless there is more to this provision, I continue to have great difficulty with its breadth and with the question of enforcement.
	Much reference has been made to judicial procedures, and in the early part of the debate we discussed the question of when judicial proceedings should take place. As the debate went on, it became clear that that was not the real point. The real point about judicial proceedings was made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. and learned Member for Medwaythat the judicial proceedings provided for under the Bill are not judicial proceedings as we understand them, but only a shadow of a judicial proceeding, because material is not disclosed and because the defendant, if we can use that term, is not told what the case against them is.
	It being Seven o'clock, the debate stood adjourned.

PREVENTION OF TERRORISM BILL

Question again proposed, That the Bill be now read a Second time.

David Trimble: I shall not take another intervention. I have made my point and I want to reinforce it by saying that I am surprised that the judges appear to have accepted, or agreed to, those proceedings.
	The form of judicial proceedings that we shall have as a result of the Bill will bring the courts into disrepute, will lower public esteem for the courts and will create huge difficulties for judges. I am surprised that they have agreed to such provisions and I suspect that when they come to operate them they will have second thoughts. The question then is, what should be done? The Home Secretary was quite rightthere is a huge problem and we have to tackle it.
	Reference has been made to the use of intercept evidence, a matter I brought to the House about a dozen years ago and to which I have returned on several occasions. I have never found the Government's arguments against it convincing. The right hon. Member for Islington, South and Finsbury (Mr. Smith) made the point in his speech that changing the law would not compel the introduction of intercept evidence, but would give a discretion that may or may not be exercised and, indeed, could be exercised in such a way as to protect sources.
	Another reason given is that the use of such evidence would let terrorists and other criminals realise the extent of surveillance. I have always thought that argument stupid. It assumes that terrorists and criminals do not already know that there is surveillance. They do know about surveillance and they also have a fairly clear idea of its extent. The authorities may have some technical edges of which terrorists are not yet aware, but I suspect that any technical advantage will be temporary and may shift from time to time. What that argument reveals, however, is that the heads of the intelligence servicesif they hold that viewassume that they are dealing with rather stupid people in terrorist organisations, and that concerns me because those people are not stupid. If the authorities and the intelligence agencies assume that they are dealing with stupid people who do not know what is going on, they are more likely to make mistakes in their approach to them, so I go back to the question and continue to endorse the use of intercept evidence.
	There is also the questionI believe that Lord Carlile picks it up in his report as wellof whether to use non-jury courts, along the lines of those used in Northern Ireland. That is a good idea. The so-called Diplock courts in Northern Ireland were a success, although they were not perfectI was involved in one case where there was a clear miscarriage of justice. However, I think that there have been fewer miscarriages of justice in Diplock courts than in jury trials in this jurisdiction. Therefore, I recommend that, although I have to say that I think that Lord Carlile made a mistake by suggesting that there would be three-judge courts rather than single-judge courts. That is too extensive a point to deal with now, but there is an awful lot to be said for placing the clear, undivided responsibility on a person who then has to produce his reasons for scrutiny. Once there is more than one person, there is the opportunity to hide behind, and rely on, other people's judgment. Moving beyond one judge is a mistake.
	The other thing that can and should be done is surveillance, which has been mentioned in the debate. That can be done. If that is not sufficient and we are dealing with a real emergency, there is something left in reserve that can be used, but only in dire circumstancesnamely, a return to Executive detention, as applied in wartime and on a number of occasions in Northern Ireland and the Republic of Ireland. That is not a matter to be dealt with lightly, but it is not matter to be discarded. Those who spoke of it in terms of something that could never, ever be done are making a very serious mistake. There may be circumstances in which it is necessary, but it should be done only in extreme circumstances. If it is done, it is indeed a draconian measure, but the fact that it is so draconian means that it will be used only sparingly.
	What bothers me about control orders is that they will become an easy option and people will slip into using of them because they will think, It's only a control order. It's not the same as putting a person in prison. It's limiting what they can do. Over the years, the number of control orders will gradually accumulate and the problems that arise will grow as a result.
	The result is that I have reached a conclusion that the legislation has been brought forward too soon. It will not be subject to proper scrutiny and it is fundamentally flawed. Consequently, I would be opposed to it. I have a little concern about the reasoned amendment that has been tabled by the Conservative and Liberal Democrat parties because it could be interpreted as ruling out the reserve power of Executive detention, which I believe must be available. Consequently, I do not regard that part of the reasoned amendment with favour, but, of course, one takes a balanced look at the matter and, on the whole at the end of the day, it is question of one's view on the Bill, and that is what will be expressed. I will not regard myself as being in any way bound by some of the persiflage that I find in the Liberal Democrat and Conservative amendment.

Vera Baird: I was glad to hear the Home Secretary once again reiterate his commitment to prosecution as his first choice. The problem is that we have been saying that for about three years now and there is no real evidence that anybody has tried to prosecute such people. I accept readily what he said about 700 people being arrested in the past year under the prevention of terrorism Acts. Many have been charged, some have been convicted and, no doubt, some have trials pending. I know that that is true because quite a lot of my former colleagues are making a lot of money out of those trials. The point is not that terrorists are not being prosecuted; it is that there is nothing to add reality to the Home Office assertion that prosecution is the first choice for those people.
	The Home Secretary has told the Select Committee on Home Affairs that the prosecution issues are very fully considered, but, frankly, it is not the job of the Home Office to decide whether people who are suspected of offences should be prosecuted. It is the specific constitutional job of the Director of Public Prosecutions, and the files should be sent to him now.
	It is implicit when applying for a control order that a decision has already been taken that a person cannot be prosecuted. That decision must be taken independently, so the Bill should set out explicitly that that must be done. The constitution sets out that the clear way of ascertaining whether a person can be prosecuted is through the Director of Public Prosecutions, so there is no reason not to make use of him.
	The Home Secretary said both today and yesterday that he was considering new offences, such as being involved in preparation for acts of terrorism. He will of course consult the DPP about such offences. However, if the DPP were asked to look at the files in great detail and found that he could not make such a prosecution, he would be in pole position to advise on the additional offences, or the widening of admissibility, that might facilitate a prosecution in specific cases. We all sit in the Chamber guessing that intercept evidence, other offences or hearsay might help, but we have no idea. We should get the expert prosecutor to examine the problem now.
	Such a procedure would above all prove to the public that an independent eye was being cast over the matter. If the consequence of being unable to prosecute is a control order, it is imperative that it does not look as though the Home Secretary is sitting in a huddle with the intelligence services to decide who will be locked up. It must be plain that the constitutionally charged official has made an independent decision.
	I do not know whether the Government fear that it would be politically difficult to put a control order on a person who was prosecuted yet acquitted, and thus an innocent man. If that is in their mind, it should not be. We put restraint orders on people who are acquitted of domestic violence and harassment, and for centuries we have bound over acquitted people to be on good behaviour if something about their conduct has caused the court to be worried about what they might do in the future. Mentioning the court brings me on to control orders.
	I congratulate my right hon. Friend the Home Secretary on grasping the need for proportionality and setting out a list of the possible levels of control that he intends to use only to meet the threat as necessary. Of course such measures will be used sparingly, but they are immensely strong. Hon. Members have cited them, so I will not repeat them all, but instead mention only several.
	It will be possible to put a restriction on people's work or business, presumably by telling them that they cannot carry out their business or go to work. It will be possible to put a restriction on people's association or communication with specified persons, presumably including any member of their families, such as children and parents. It will be possible to put a restriction on people in respect of their place of residence and the people to whom they give access to their place of residence. Presumably people could be told to move house, or told that they could not move to where they wanted. Another person will be able to restrict someone's movements under the aegis of the measures, and it will be possible for restrictions to be put on where people can go in the UK or outside it. It will even be possible to specify a small part of the UK to be restricted. That measure could presumably ban people from the streets outside their houses, so it would effectively cause people to be locked up in their own houses. The measures will allow people to be tagged and provide that they must agree to allow people into their houses so that they can be searched. People will also be required to give advance information about their movements, if requested.
	I have cited only examples. It is quite clear from clause 1 that the Home Office has complete latitude to impose any condition that it sees fit as long as that is necessary to restrict people about whom there are reasonable grounds to suspect involvement in terrorism-related activity. Just about anything can be done under a control order under clause 1 short of house arrest, but that power exists in clause 2, so I guess that the clause covers everything falling short of that.
	The Home Secretary has been rightly praised in the round for upping the judicial scrutiny of the powers, but that will not apply to such control orders. This has been said once, but let me say it again pretty clearly, rather than in lawyers' code, so that people can understand it. Unlike the situation under clause 2 for a derogation control ordera locking-up orderwhen there will be an automatic reference to the court by the Home Secretary within seven days, a control order under clause 1 will be subject to appeal only as and when an individual chooses to make one. The appeal will be based on whether the decision to impose a control order, or find a person to be a terrorist, is flawed. The court is scrutinising not whether the order should have been made, but whether it has been made in the right way.
	Therefore, no court will consider whether there are reasonable grounds to suspect that the person is or has been involved with terrorism-related activity. The question of whether the control order is necessary will not be considered. The questions that will be considered are whether the Home Secretary took the right things into account, left nothing out or did not consider something that he should have done when he made his decision. If the decision is quashed, all the Home Secretary must do is take into account what he left out, or leave out what he should not have put in, and make the same decision again, and there is no appealit is finished.
	My right hon. Friend the Home Secretary said that if the extent of the control order is so stringent that it would take away liberty, it will tip over into the appeal procedure for clause 2. In my view, however, that is not correct at all. The clause 2 derogation-based house arrest orders can be made only if there is a derogation. When he makes an order for house arrest, he must refer that fact to the High Court, and the court must hear it within seven days. Making a house arrest order under derogation triggers the appeal to the High Court, which must confirm or quash the order within seven days. That is the only way that one can get any order into the High Court. One cannot get a control order into it. Only when there is a derogation, which there is not, and there is no intention of having one, and only when there is a clause 2 house arrest order, which there will not be in the case of a clause 1 order, can that appeal follow. There will be no scrutiny of the facts at all, and while I accept that there is better scrutiny for house arrest orders, it is incorrect to suggest that that will be applicable to control orders. The only appeal against the control order will be scrutiny of the decision, which is insufficient, poor calibre and adds enormous weight to the argument that the judiciary must be involved from the outset and not later.
	In making that argument, I rely on the fact that the Home Secretary has brought judicial scrutiny much closer with regard to derogation-based lock-up orders. He has accepted that on that case. My argument to him is that if one has the power to make a lock-up order under a derogation, but one must refer it to the High Court, which must confirm it or quash it within seven days, that is only a provisional order and the court is really making the order.
	It is not clear to methis is probably an unpopular argument in the House, given the atmosphere tonightthat there is truly a great erosion of human rights as between a court ordering a control order and, on the other hand, the Secretary of State ordering a control order with the duty to refer it for quashing or confirmation within seven days, in which case it could be quashed or confirmed within as little as a day. I cannot see a massive erosion of human rights as between those two. Obviously, however, it is of the utmost importancealthough technically not necessarily massively important, it has a huge impact on the public's view of exactly what we are doing with such people.
	If the true position is that because the Home Secretary must get the control order confirmed or quashed within seven days he has really only made a provisional order, how far away is that from him making up his mind that he wants an order, making an application to the court ex partie and asking the court to make a decision within seven days? It is about two penny worth away, as my mother would have put it, is it not?

Vera Baird: As between making an order and having an appeal within seven days, for which the Home Office has to furnish material, the furnishing of material at the outset when the application is made and requiring the matter to be determined within seven days means that there is not spitting distance between the two. Once we accept, as my right hon. Friend the Home Secretary has for the high-level orders, the principle of close judicial scrutiny, there is little difference to be found. There is therefore every argument for taking the extra step and bringing the judiciary in at the beginning.
	It would not end all the problems. I accept what many Members have said about the problems of evidence, special advocates putting the case and the opportunity of challenge. All these matters can be solved with a good deal of effort and cross-party will, if only we can come up with a framework with which all of us are comfortable and within which we could work.
	That extra step would end all of the outcry about Executive detention. It would end all of the backlash of the civil liberties groups. It would put away much of the fear of exciting community unrest because of eroding trial rights and replacing that process with Executive detention. It would quiet the public and it would restore our constitution.
	I shall vote tonight with my right hon. Friend the Home Secretary because he has clearly said that he understands the issue and that he will consider it extremely seriously. I see no alternative, with 14 March looming large, but to try to get this proposed legislation right in time. I say to my right hon. Friend that I hope that between tonight, when I give him my vote, and the next opportunity for us all to vote, he takes the extra step.

Crispin Blunt: It is 740 years since Reigate first returned a Member of Parliament, so I have the opportunity to make a truncated contribution to the debate. Some Members will not have the opportunity to make any contribution to this extremely important debate. As the debate comes to a conclusion, it is opportune to weigh in the balance what we are discussing and to look back at the rights that have been acquired by Britons over the centuries.
	I turn first to the Magna Carta, 790 years ago. Chapter 29 stated that no freeman shall be taken or imprisoned or seized of his freehold or liberties or
	free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.
	These statements and judgments echo down the years.
	In 1615, a Chief Justice, Lord Coke, said:
	By the law of God, none ought to be imprisoned but with the cause expressed in the return of his imprisonment, as appeareth in the Acts of the Apostles.
	I do not think that I would have expressed the matter quite like that, but this Parliament expressed it in the Petition of Right. In the fifth clause it set out the grievance that
	divers of your subjects have of late been imprisoned without any cause shewed; and when for their deliverance they were brought before your justices, by your majesty's Writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer; no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy-council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law.
	In 1770, when a Mr. Stewart brought his slave, Somerset, to England, Lord Justice Mansfield said:
	Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.
	Then, 140 years later, in a judgment already referred to by my hon. Friend the Member for Stone (Mr. Cash)the Liversidge v. Anderson case, a war-time internment caseLord Atkin said that
	one of the pillars of liberty is that in English law every imprisonment is prime facie unlawful and that it is for the person directing the imprisonment to justify his act.
	That is what is at stake in the passage of this Bill, and I wish that more hon. Members were aware of the enormity of what the Government are inviting us to do this evening.
	Why now? On Monday, the Leader of the House announced in the business statement that the Bill is necessary because the existing powers will expire on 14 March. When the Home Secretary made his statement on the following day, however, he said that he does not need all the powers in the Bill. Which is it? We know that my hon. Friends have proposed an alternative to enable the Government to keep those powers on the statute book.
	The Bill rests on an assumption about the threat faced by the United Kingdom. In a previous incarnation, I was a soldier, working on the assumption that I could trust the integrity of the chain of command when I was given orders and that I could believe that those orders were beneficial and well intentioned. There is a difference between a soldier making those judgments and Parliament imposing the proper restrictions on the Executive, which is a test not necessarily for this Home Secretary but for any Home Secretary in any Executive. That is the standard that we should apply.
	My experience in this House in the past seven-and-a-half years leads me to believe that I cannot trust this Executive. I regret to say that I voted for the war in Iraq. I heard the final speech by the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore), and I felt rebuked by the fact that I had allowed myself to make what I believe was a misjudgment on the basis of the case that the Prime Minister presented to the House and set out to the country in a television broadcast. I believed what he said about the nature of the threat to the United Kingdom, and I feel that I was wilfully misled.
	In my eyes, the Prime Minister and the Executive no longer enjoy the benefit of the doubt.

Mark Fisher: Consideration of the Bill this afternoon has demonstrated profound weaknesses in this Parliament. We have been debating the central elements of our democracy and of our human and judicial rights: habeas corpus, the independence of the judiciary, and the separation of the powers that distinguish our political system between the judiciary, the legislature and the Executive. Apart from the heroic small group of hon. Members who have been here throughout and contributed to an outstanding debate, where have our colleagues been on these issues? If we are not sent to this Parliament to debate the future of these issues, for what are we sent here?
	I fear that in spite of the excellent speech of my hon. Friend the Member for Nottingham, North (Mr. Allen) we are going to fail a test in terms of the scrutiny that we have been sent here to apply to Government business. We have done so in the rigour of the debate and in the argument, but I fear that, in a few minutes' time, those who were absent and have not heard this excellent debate are going to push the measure through. We will fail in our responsibility to be a check and a balance on the Executive on this most vital issue.
	We are making bad law today, or are risking doing so. If so, we are failing as a Parliament. We have to start reasserting the right and the duty of this Parliament to carry out independent scrutiny of the Executive.

Mark Fisher: Another hon. Gentleman wants to get in and I want to give him a minute or two.
	We should make a start here today. In particular, those hon. Members who have not been able to be in the Chamber today should read this very good debate and consider it over the weekend. I hope that, on Monday, this Chamber will be full for the consideration of issues that are right at the centre of our democracy.

Alistair Carmichael: This has been, without hesitation, the best debate in which I have had the privilege to take part since I came to this place, and the contribution of the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) was one of the best in it so far.
	I wish to say a few brief remarks about the operation of the schedule to the Bill, particularly as it pertains to Scotland. As I have made clear, this is a matter in which the Government seek to intrude upon the proper operation of the devolution settlement. The question of rules of court in Scotland is, quite properly, within the remit of the Scottish Parliament. I should like the Minister to tell us what consultation there has been with the Scottish Executive in relation to this, and what opportunity there will be not just for the Scottish Executive but for the Scottish Parliament to express a view. Ifas would be constitutionally, or at least morally, proper, in my viewa Sewel motion were to be presented, I cannot envisage the circumstances in which my colleagues in the Scottish Parliament would be supportive of it. The way in which the measure seeks to graft alien principles such as the SIAC procedures on to the judicial process in Scotland is, in my view, absolutely unacceptable. The position of special advocates strikes at the heart of the lawyer-client relationship and leaves it impossible for any lawyer properly to execute their duties and ethics. It is a corrupt and corrupting system, it is bereft of integrity and I cannot countenance its ever being part of the Scottish legal system.

Dominic Grieve: This has indeed been an extraordinary debate, and I apologise to hon. Members if, because of the short time for the winding-up speeches, I cannot do justice to all the contributions that have been made.
	A sensible place to start is with the three hon. Membersjust threewho said that they would support the Government tonight. All threethe right hon. Member for Southampton, Itchen (Mr. Denham), the hon. and learned Member for Redcar (Vera Baird) and the hon. Member for Hendon (Mr. Dismore)made speeches which, I am bound to say having listened to them, presented some of the most cogent arguments as to why the legislation is fundamentally flawed.
	The hon. Member for Hendon effectively said that the operation of control orders would be so unwieldy as to be almost unworkable. The right hon. Member for Southampton, Itchen made the important point that the decisions that will be taken to impose control orders will effectively block off the possibility of prosecution and reduce the likelihood of that taking place. The hon. and learned Member for Redcar raised a huge number of issues and I fully appreciate that her support was out of loyalty and conditional upon changes being brought about.
	There were a large number of other contributions. They ranged from those that sought to look in great detail at some of the legal issues based on experience and knowledgefrom my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. and learned Member for Medway (Mr. Marshall-Andrews)to the visceral. There is nothing wrong with visceral contributions on an issue that ought to affect us all viscerally.
	Whatever else one can say, whether one is coming to the House to argue in favour of the Bill or against it, the enormity of what we are debating tonight cannot be overlooked. Nothing has worried me more in the course of the debate than the impression given by those on the Treasury Front Bench that while this is a difficult issue all is for the best in the best of all possible worlds, and that subject to some tweaking and discussion on the detail, there really can be no objection in view of the security situation that exists for suddenly embarking upon this piece of revolutionary legislation that places in the hands of the Executive the power over liberty of the subject. I could not disagree more with the glibness of that approach, and I very much regret it.
	I say to the Minister for Crime Reduction, Policing and Community Safety, who I understand will reply to the debate, that she and the Government face a difficult task. One of the problems is that they are privy to lots of information that they cannot share with us, and I appreciate that. But equally, they are privy to lots of information that they can share with us. If the Minister, having been asked yesterday by a journalist on Newsnight, I think seven times, whether she could explain when the Government decided that the memorandum on the back of the renewal notice that said that it was possible and legal to renew the existing powers was no longer their view, refuses to answer, how can we start out with a sensible debate on important issues?
	For the avoidance of doubt, I will now tell the Home Secretary exactly where we stand. A huge number of issues relating to this legislation need to be looked at separately. First, the powers that the Bill creates should be exercised not by the Home Secretary but by a judge. I get the impression that the Government may be beginning to shift on that point. If they are, I wish to heaven that the Minister for Crime Reduction, Policing and Community Safety will state the logical and obvious: judges will have to make the decisions. The problem goes much further. It is not simply a matter of the decision, but the entire process.
	I must make a confession. When Conservative Members first informally discussed whether judges should make the decision, I felt an almost visceralto use that word againrevulsion at the prospect of our asking judges to do that. We are not considering a judicial process at all. It is important that every Member who intends to vote at 8 pm understands that it is not and cannot be a judicial process.
	In our constitution, judicial processes involve fairness and hearing the other side's arguments. It means a level playing field on which people can answer the serious allegations that are made against them before they are deprived of their freedom. However, whether a decision is made by judges or the Home Secretary, and subsequently judicially reviewed, we will establish a system where none of those things apply. I accept that that is a problem for the Government and that they did not intend such a consequence. However, the proceedings will be secret and large quantities of the evidence will, of necessity, be concealed from the defendant, who will not be able to answer the allegations made against him or obtain full representation even through the mechanism of the special advocate procedure.
	The Government have had more than a year to examine Lord Carlisle's critique of the operation of the special advocate procedure. I appreciate that the Home Secretary has not been in his post for long and that he has inherited an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner. Nevertheless, a year on from Lord Carlisle's critique, we have not received a Government response about the way in which the special advocate procedure can be improved. Such details must be addressed. They cannot simply be brushed under the carpet. If we embark on the course of action that the Government propose and introduce control orders, we must consider carefully every line of the Bill to understand the way in which we can improve it to the best of our ability.
	Today, great play was made of questions, especially to my right hon. and learned Friend the Leader of the Opposition such as, Well, you're against control orders, aren't you? Of course we should be against control orders. As a principle, control orders should be anathema to every democrat. However, that is not to say that there may not be occasions when we have to swallow the unpalatable. I have told the Home SecretaryI repeat it todaythat, although control orders may be unpalatable, we may have to consider them. However, we must ask ourselves to what extent they serve a useful purpose.
	An extraordinary state of affairs already pertains. The Home Secretary is rushing the Bill through because the Belmarsh deadline is imminent. However, when the deadline arrives, even with the control orders in place, the people will be released into the community. The Home Secretary has told us that he does not understand the necessity of introducing house arrest provisions. I repeat that the Bill does not only provide for house arrest. The order could be, Go and live in a cottage on Benbecula or Go and live in the Bicester asylum seekers accommodation. That is possible under the powers that we are creating.
	Do the control orders serve a purpose? If we do not intend to provide for house arrest now, why should we give the Home Secretary the power to do something, which would almost certainly breach the European convention on human rights on a challenge and could not be maintained if it went back to the House of Lords? I believe that he has received legal advice to that effect. If that is the inevitable outcome, there is no point in our including it in the legislation nowand that leaves us with control orders which fall short of home detention.
	As we go through the Bill on Monday, the Home Secretary will have to explain how each of the measures that he has spelt out line by line will have a useful function in preventing people from coming along and blowing themselves up either here or outside Parliament, or killing other people. At the moment, I still need some convincing. I can see how control orders might help a little, but the idea that they will prevent determined individuals who are suicide bombers from escaping the clutches of supervision and committing atrocities is one that I do not entirely accept. The point was well made today that surveillance might be more effective, although I am mindful of the fact that surveillance has its problems as well.
	I want to give the Minister ample time to respond, because I think she has much to answer. Let me simply say this. The more the debate has gone on, the more we have asked ourselves whether the Bill is curable by amendment. That question may seem very relevant to many Members who are considering how they will vote at 8 pm. I accept that if Members think the Bill is indeed curable by amendment, that may be a reason for giving the Government the benefit of the doubt and, on Monday, going to work to see what can be done about it; but we need only look at the extent of the problems in the document to see that it is unamendable.
	Is the Home Secretary seriously considering the possibility that the House should allow rules of court to be prepared by statutory instrument when those rules will be entirely unlike any others that have ever been put together in this country? As I said earlier, the measure requires a system of justice entirely different from any under which we currently operate. That in itself ought to give every hon. Member pause for thought before he or she goes into the Lobby to support the Bill.
	What if the Bill is defeated? What if the amendment is carriedand I encourage hon. Members to vote for it? We will help the Government if they come back with a proposal quickly. We told the Home Secretary that we would help to extend the existing powers for a short period. I have no desire to extend the existing powers. I accept that they are flawed, and the House of Lords has said that they do not comply with the Human Rights Act. Those are good reasons for getting rid of them. I am bound to say that if that is the small measure we must give the Government to enable them to go away and be sensible, and engage in a proper dialogue we will do it; but until we are given some sign from the Government, the best thing that hon. Members who are true to the oath that they took when they came here, and to our duties to our constituents, can do is to get rid of a Bill which is one of the most horrible things I have seen since I came to the House.

Hazel Blears: We have had a tremendous debate over the past four or five hours, certainly the most important in which I have taken part during my time here. I am grateful to Members of all parties for their contributions. I shall make a few preliminary remarks before dealing with as many comments as I can.
	First, let me make it clear that, in my view, it is essential to the prevention of terrorism for us to remain above the party political fray. There is no issue more pressing, more salient or more difficult to resolve than the balance between the rights of the individual and the rights of wider society, and where to strike that balance is the very stuff of politics. Today's debate, however, is not theoretical. We have heard a lot of theory today, but the debate is real, it is here and it is now. All the evidence and the experience in Bali, Madrid, Iraq and elsewhere shows that terror cells do exist, they are active and they are plotting new atrocities.
	So what should Government do? The theories of rights look pretty feeble in the face of the suicide bomber or the suicide hijacker. Edmund Burke and Tom Paine had no concept of the threat that we face from terrorist foes, so our deliberations must reflect the realities, not the theories. No Government faced with the scale of threat that we currently face could fail to act and still expect the support of the public. We must defend the freedoms of the overwhelming majority, who want to live in peace and security, and tackle the tiny minority who are prepared to kill themselves in order to destroy our way of life. I remain convinced that on this fundamental issue we have struck the right balance.
	I will now try to deal with the issues that have been raised. I welcome the willingness of the right hon. Member for Haltemprice and Howden (David Davis) at least to engage with the legislation. He said that he does not particularly like the idea of control orders but he is willing to see whether the Bill can be improved. We certainly all share that aim.
	The right hon. Gentleman raised specific issues and wanted other measures to be considered. He asked whether other offences such as acts preparatory to the commission of terrorism could be considered. We are actively looking at that. The Home Secretary said that we will look at that and possibly bring forward further legislation.
	The right hon. Gentleman talked about intercept. Many hon. Members have mentioned that againI think that this is the third or fourth occasion in recent weeks that we have talked about it. He said that, since al-Qaeda knows about US intercept, how would our use of it mean that its practices were altered? Although simple forms of intercept such as wire and phone tapping may well be general knowledge, some of our more sophisticated capabilities, using intercept in different ways, are not necessarily known to those terrorists. If those capabilities become widely known, the terrorists will change the way in which they operate and our ability to disrupt them and to thwart their attacks will be severely compromised.
	The right hon. Gentleman asked why it is suddenly necessary to impose these control orders. That issue has been raised more generally. It is necessary now not only because we have to respond to the Law Lords judgment, but because, as we have done more and more operations to disrupt terrorists, we have found that the threat from British citizens has been developing in a way that was not clear to us immediately following 9/11. Therefore, there is a need now to have powers that respond to the threat not just from foreign nationals but from British citizens.
	I say a genuine thank you to the hon. Member for Winchester (Mr. Oaten) for his constructive approach to the problem. He is right to say that there is common ground between us and he laid that out in a genuine way. We need to have a regime in place by 14 March to protect the public. He does not want the part 4 powers to be renewed. He wants to see whether we can put something in place. I agree entirely that we need to do more on deportation, getting memorandums of understanding with those third countries, provided that they are robust in human rights terms, to see whether we can return people to where they have come from.
	The hon. Gentleman said that control orders could be a useful tool in the variety of mechanisms available to us and he has generously acknowledged the considerable movement we have made in having a high level of judicial scrutiny, involvement and oversight in the process. However, he is also right to say that there is disagreement between us. There remains the issue of the point at which the judiciary get involved. My hon. and learned Friend the Member for Redcar (Vera Baird) said that there was perhaps tuppence between us in terms of when the judiciary should get involved. The Home Secretary has said that we will consider the matter further. No doubt we will debate it in detail on Monday in Committee. We are happy to do that but that is an area where there remains disagreement between us.

Win Griffiths: I thank the Home Secretary for his commitment to look again at the issue of the primacy of the judiciary in this process. I hope that, on Monday, we will have a full and successful debate, so a vote for Second Reading will mean a vote for Third Reading. I hope that we do not have to vote against Third Reading because we have not made any progress.

Hazel Blears: I can give my hon. Friend the assurance that we will continue to engage in detail on this issue when we look at the Bill line by line. We certainly will be doing that on Monday.
	The hon. Member for Winchester raised issues about the standard of proof, reasonable suspicion and the balance of probabilities. Another issue he raised was about the fact that there are already police powers to hold people in detention for 14 days. He asked why we should not use those police powers, rather than seeking a seven-day period for the control order. I think that he acknowledged that the current police powers relate to an ongoing investigation and therefore may not be appropriate, but I am sure that we can explore that in greater detail next week, too.
	I was grateful to my hon. Friend the Member for Stafford (Mr. Kidney), who raised the possibility of exploring the idea of an interim application. We went on to discuss whether such an application would be ex parte in those circumstances. Those are the sort of detailed matters that we can genuinely discuss on Monday.
	I was saddened by the contribution of my hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). I acknowledge his strength of feeling, but if that was his last speech in the House, it is a shame that he could not have spoken about a more constructive subject and offered something more positive. I really feltthat his contribution was very sad indeed[Interruption.]
	I was grateful for the contribution of my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), who adopted a very practical approach to the issues. He said that there was too much theoretical legalistic language in tonight's debate and that we needed to get the balance right. He raised some serious issues about what happens when a control order is decided on. He asked whether a decision is taken then about prosecution and on whose advice. I can tell him that every single time that a control order is considered, advice will be sought from the Crown Prosecution Service, as it is now, about whether a prosecution is possible. Prosecution is always our preferred option.
	Several hon. Members asked about sending the papers to the Director of Public Prosecutions. I can confirm that the CPS is engaged, but we will look to see whether we can do anything further on this matter. I want to tell the House that a decision to make a control order does not mean that investigation stops. Indeed, investigations have continued into some of the current detainees and further charges have been brought. It is not the case that, once an order is made, all the work on investigation and prosecution comes to a full stop.
	The right hon. Member for Hitchin and Harpenden (Mr. Lilley) questioned the advice of the security services and said that it was the job of Ministers to probe, test and evaluate that advice and reach their own decisions. I can give him the assurance that that is exactly what Ministers do: we receive the advice of the security services, but then test it in order to reach our own viewpoint. He said that we should not pass off responsibility to officials, and we are certainly not doing so. Interestingly, the same argument could be applied to passing off our responsibility to the judiciary. That was one of the matters raised by the right hon. Member for Upper Bann (Mr. Trimble), but I can reassure him about that.
	My right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith), who unfortunately cannot be with us now, did not accept the need for control orders and argued that it was the job of the Government to test whether such powers were necessary. He served on the Newton committee, for which I am grateful, and he also raised the matter of using intercept evidence. I remind the House again that much of the intercept evidence used in other countries is the product of law enforcement agencies. They do not use intelligence product to anything like the extent that we do in this country. I have a genuine fear that, if intelligence product were used, we would see the sources drying up significantly in the future.
	As to the contribution of the hon. Member for Henley (Mr. Johnson), does he accept that there is a serious threat, which I thought was fairly common ground? Does he accept that some people cannot be prosecuted through a conventional legal system? Does he accept that detention in prison under part 4 is not sustainable in the light of the Law Lords judgment? Frankly, in those circumstances, what would he do? We received no answer to that question whatever.
	My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) made a short and powerful speech in which he said that he would support control orders up to derogation. I hope to persuade him of the need for the extra powers in our later line-by-line examination of the Bill. My hon. Friend the Member for Nottingham, North (Mr. Allen), who has a proud record on constitutional issues, asked for further change, but recognised that extraordinary times need extraordinary measures. I was grateful to him for that.
	The hon. Member for Gordon (Malcolm Bruce) asked about European issues and invited us to take serious note of the tone of the debate. I can certainly give him the assurance that we will do so. My hon. Friend the Member for Stevenage (Barbara Follett) made a powerful and moving speech, in which she recounted her personal experience. She said that she could not support the Government on control orders this evening. I hope that she will remain engaged in the debate over the next few days, as she raised some serious and important points.
	I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore) and to all those hon. Members who offered support. I end by placing on record my appreciation of the work of the security services. They have helped protect this country over the past three and a half years, but have no forum in which they can explain themselves. We owe them a huge debt of gratitude for keeping us safe.
	It being Eight o'clock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

David Drew: I am delighted to have the opportunity to speak in this Adjournment debate after all the excitement that went previously. This is an important topic. It is good to see the Under-Secretary of State for the Home Department, my hon. Friend the Member for Don Valley (Caroline Flint), on the Front Bench. May I start by thanking her for accepting a delegation from Naturewatch, on whose behalf I will largely speak? That charity is not based in my constituency, but in that of my friend, even though he is of a different party, the hon. Member for Cheltenham (Mr. Jones).
	I want to thank particularly Richard Tweedy, who helped me to compile the information on this debate. He, along with the hon. Members for Lewes (Norman Baker) and for Southend, West (Mr. Amess) were able to come to a meeting in December 2003 at which John Ruane, the chief executive of Naturewatch, drew attention to the important issue of the use of animals in experimentation.
	I make no apology for the fact that I shall talk about the use of primates and what has happened over the past few years. There are accountable procedures through the Animal Procedures Committee's reports, and more recently we have had the Boyd group report . The Boyd group is influential in combining both scientists and welfarists but unfortunately it seems not to have much power. The APC, which was set up by the Home Office to advise on the use of animal scientific procedures, based on the 1986 legislation, apparently has more authority. It is fair to say that the APC has been quite good at producing impressive reports, but it is for us to question what happens on the back of those reports. I shall be asking my hon. Friend the Minister to provide greater clarification and some assurances that we shall be given more information that is meaningful. There seems to be a greater use of primates, which some of us find reprehensible
	I am trying to ascertain what has happened since the last APC report. What actions were taken on the back of that report? Do we need further to clarify the Government's attitude towards it? I will sign up to the three Rsno doubt my hon. Friend will talk about themwhich are the Government's stated policy on animal experimentation, but we want to see actions as well as words.
	The majority of primate use is in toxicologydrug testing. About 70 per cent. of primates are used in that way. The main species are marmosets and macaques. Baboons have not been used since 1998, largely because housing and husbandry costs are too high. Great apes have not been used since 1988, and thankfully their use has been banned since 1995.
	Seventy per cent. of the use of primates is in toxicology. Most toxicology testing is done on rodents, but there is a regulatory requirement to test drugs in two species, one of which must be a non-rodent. The second species is usually dogs, unless they are unsuitable. For example, there is the drug class known as NSAIDS, which includes aspirin, which tends to have an adverse reaction in dogs. If dogs are not used, primates tend to be the usual alternative.
	A major concern is that primates are used by convention and not of necessity. In other words, primates are used as an alternative to dogs because primates have always been used. The scientific rationale is that because of this there is more background data relating to primates than to other species. Should this be questioned, given the ethical dimension?
	The APC notes that the regulations contain considerable power, such as those that apply to the US Food and Drug Administration. It comments that
	this is alarming given that there is a lack of transparency in their function. It is extremely hard to ascertain exactly how they operate.
	My hon. Friend the Minister may wish to respond to that statement.
	Current practice acts to undermine the operation of the Animals (Scientific Procedures) Act 1986. For example, commercial pressures may lead to rodent and primate studies being undertaken simultaneously, when the primate studies should be carried out only after the first studies on rodents have been successful. Also, generic licences for large toxicology projects do not provide sufficient justification for the use of primates, so that insufficient detail is given in licence applications for justifying their use.
	The developing areas of alternatives are micro-dose studies in humans and non-invasive scanning techniques such as NMRnuclear magnetic resonanceand PETpositron emission tomography. It is not clear whether enough resources have been allocated to moving towards those technologies and away from the use of primates.
	I have two key questions. First, is a secondary, non-rodent species always necessary under the current testing regime? Secondly, when primates are used, are they really the only suitable species? There are other important issues, but I will not discuss them at this point because I want to bring those two issues to the Minister's attention tonight.
	The future use of primates concerns Naturewatch, in particular, and those of us who take a keen interest in the future use of animal experimentation. The number of tests declined slightly in the 1990s, and one might have expected that trend to continue. Drugs are increasingly likely to be targeted at human receptors, so they cannot be tested on rodents, which do not have those receptors, but they may be tested on primates. The graphs show a significant recent increase in the number of primates used.
	Research is increasingly focused on diseases of old age in the brain such as Parkinson's, Alzheimer's and strokes, which has resulted in an increased call for the use of primates. Finally, the human genome project is likely to lead to an increased emphasis on primates in order to determine the function of the 10 per cent. human genes that are unique to primates and are not found in rodents. Pressures seem to exist to bring forward the greater use of primates, at least in unison with testing on rodents. Given the nature of new drugs and how the genome project is being taken forward, people who work in that area always say that they want more licences to use primates.
	My conclusions concern the role of the APC, which has stated:
	The drive to produce pharmaceuticals for human benefit, and the associated primate use that this currently entails, clearly creates a conflict with the desire to minimise and eliminate the use of primates in experiments. If the predictions of an increased demand for primate use are realised then this conflict becomes more intense. The Subcommittee believes that it is extremely important to recognise this conflict, and absolutely essential to more determinedly and actively seek ways of resolving it. However, it must be recognised that this is a global issue, which needs to be tackled on an international basis.
	The APC is aware of the dilemma. If it were asked to examine what is happening in the world of research, it would conclude that primates are more, rather than less likely to be brought forward for experimentation, despite that being against the nature of what many of us would like to see.
	What steps have the Government taken to address the use of primates as a second species in toxicology testing? In particular, have they tackled the automatic assumption that a non-rodent species is necessary in the testing of all drugs? Secondly, what conversations have the Government had with the regulators on those issues? Thirdly, what progress has been made in developing and promoting human micro-dose studies as an alternative to the use of primates in toxicology? Lastly, what work has been done on assessing the predicted value of primate studies by comparing pre-clinical and clinical studies of drugs that have progressed to the clinical trial stage and beyond?
	If I had time, I would go into a number of related issues. I would certainly examine the severe experimentation on cats, dogs and horses as well as primates. The APC has also agreed to review procedures of substantial severity involving xenotransplantation. I am particularly interested in that subject because some have said that redefinitionthe third Ris allowable because we will see greater use of xenotransplantation. It would be reasonable at this stage to ask the Government whether that is acceptable and whether it will reduce the use of primates, but also whether there are problems. For example, when there has been xenotransplantation of pig livers into primates, there has been evidence of chronic pain and of a real impact on the central nervous system. That is something my hon. Friend might wish to talk about.
	Finally, the main contribution of the Boyd group report on primates in experiments was to summarise scientific knowledge in areas such as the sentience of primates. There was a good discussion of the moral status of apes and whether an ape is a person but much of it was not germane to this debate so I will not go into it at this time. However, it showed that when we talk about the use of primates, we have to be clear where we are drawing the line in terms of what is currently banned and what is allowable. It would be helpful if my hon. Friend clarified which of the primate family were allowable for testing and which were not.
	Monkeys are less sophisticated than great apes, but increasingly show signs of intelligence. Given that their social lives are important, that they express reconciliation and that they show signs of understanding consolation, we ought to be reducing the use of these animals, rather than encouraging it.
	In conclusion, I ask my hon. Friend to put on the record that the APC and the Boyd group report have done some valuable work in highlighting the issues, but it is up to the Government now to state categorically that they will seek to find alternative ways in which animal experimentation, if necessary, can be taken forward other than with the use of primates.

Caroline Flint: I congratulate my hon. Friend the Member for Stroud (Mr. Drew) on securing the debate and I thank him for his comments about our meeting in my office. I say to him and to other hon. Members that I have an open door to future delegations. This area is kept under constant scrutiny by hon. Members, organisations such as Naturewatch, our Department and by the APC.
	There are some issues on which I will have to come back to my hon. Friend, if that does not cause him too many problems, but I wish to point out a few issues regarding Government policy on the use of animals. We believe that animal experiments continue to be necessary if improvements in health care are to be developed with the minimum of delay and to protect the public and the environment from other hazards.
	The NHS would be unable to function effectively were it not for the availability of medicines and treatments developed or validated through research using animals. It is no exaggeration to say that almost every form of conventional medical treatment has relied in part on the study of animals. Asthma treatments, medicines for peptic ulcers, schizophrenia, depression, polio vaccine, kidney dialysis and transplants are just a few examples.
	While we accept that animal experimentation is both effective and necessary, we believe that it should also be kept under review and its use should be challenged. That is why we need to weigh up the benefits to the public against the cost to the animals. We must look at whether there are any other ways of achieving the desired results. We must also look at the procedures that are applied to animals and at how we can make sure that they cause the least amount of suffering and use the minimum number of animals to achieve the outcome. Of course, in all cases, we must ensure that the highest standards of animal welfare are applied.
	We believe that this approach reflects closely what the public want. Opinion polls carried out in 1999 and 2002 reported that more than eight out of 10 of those surveyed felt that animal experimentation was justified for medical research, provided that all necessary steps were taken to minimise any resulting animal suffering. Basically, people want to be healthy and safe, but they also want to make sure that, where animals are used, welfare considerations are taken into account.

Caroline Flint: I accept that when it comes to primates there are additional concerns, which is why we must ensure that when we license procedures involving the use of primates we can satisfy ourselves, Members of the House and those outside as to the reasons for that.
	The Government's job is to find a way of balancing public aspirations for cures for the health problems and diseases that reduce the quality of life of millions of people and condemn many to an early death, with the extent to which we can allow science and technologies to use these animals.
	We believe that legislation provides a highly effective means of doing that. The Animals (Scientific Procedures) Act 1986 is rightly described by many as the toughest legislation of its kind in the world, something of which we should be proud, and we should try to ensure that those standards are applied elsewhere, through our engagement in Europe and globally. At the same time, it is not a straitjacket. It is flexible enough to allow the latest ideas and technologies to be taken into account when decisions are made about animal use and to ensure that animal welfare costs are minimised.
	In some areas primate use remains essential. I accept the points that my hon. Friend and the hon. Gentleman made on public concern about the use of primates, and in recognition of that primates are given special protection under the 1986 Act and may be used only where no other species is suitable, where the likely welfare cost to them has been carefully weighed against the expected benefits of the research, and where everything possible has been done to minimise their numbers and suffering.
	Unfortunately, we cannot end the use of primates without halting important areas of medical and scientific research, or jeopardising human safety. At present, primates are mainly used to ensure the safety of medicines and certain vaccines. They are also used in research on Parkinson's disease, Alzheimer's disease, visual impairment, stroke and reproduction disorders.
	Neuroscience research on non-human primates has produced, and continues to produce, significant advances in the management of a number of devastating and prevalent human conditions that are not otherwise amenable to long-term treatment by other means, such as the management of Parkinson's disease and the treatment of intractable movement disorders.
	My hon. Friend referred in particular to the increase in primate use in 2003. I understand that there is concern about the reported 20 per cent. increase in scientific procedures using primates in 2003, and I understand the concern about whether that may show a long-term upward trend in their use. I can reassure the House that that is not the case. When we saw the figures, officials looked deeply into the reasons for the increase.
	I can report to the House that the great majority of the additional procedures recorded in 2003 stemmed from a single causeblood sampling for the development of in vitro tests. This work, for which no other species was suitable, has continued in 2004, but I am pleased to say that early indications are that significantly fewer procedures using primates have been carried out for this purpose in 2004, compared with 2003. Obviously, we must keep the matter under review and continue to monitor the statistics, but I hope that that, at least for tonight, provides some explanation and reassurance for 2004.
	Looking to the longer term trends in primate use, there are bound to be some annual fluctuations, but the number of procedures using primates has remained fairly stable for a number of years and we believe appears likely to remain so. The figure for 2003 was only 0.17 per cent. of the total for all animals. However, I understand that primates are a special case and the law is therefore even more stringent when allowing licences for their use. There is no evidence that the amount of primate use is being affected by an increase in brain research or developments in the human genome project. We will continue to keep that under review.
	The human genome project is more likely to lead to increased use of genetically modified mice into which human genes have been inserted rather than greater primate research. Again, we will keep the matter under review and continue to ensure that all primate use is fully justified.
	My hon. Friend referred to the Animal Procedures Committee and its work. As he knows, it launched its report on primates in July 2003. It contained several recommendations that were aimed at reducing primate use. In our initial response in November 2003, we accepted the committee's principal recommendation that there should be a stakeholders' forum on primate use. The Home Office and the committee jointly organised a forum that drew together APC members and a range of primate users and regulators in January 2004.
	The Home Office has prepared a summary of the forum's findings and the chairman of the APC recently agreed it. It will be placed on the Home Office and APC websites shortly for further comment from stakeholders. I would therefore welcome it if hon. Members read the report. I am sure that they will come back to me with any issues that they want to raise.

Caroline Flint: I take my hon. Friend's concerns on board. The report will appear on the website. We are responsible for providing a full and final response to all the Committee's recommendations when further consultation has been completed. When we place the forum's findings on the website, we will seek views from other stakeholders, such as non-governmental organisations and hon. Members, on them. We will consider those views when we devise our final report on the recommendations. I hope that that will create an opportunity for further debate. As I said at the beginning of my speech, I would be happy to see hon. Members at some stage when we can hold a more detailed discussion about the issues.
	My hon. Friend commented on progress on the National Centre for Replacement, Refinement and Reduction of Animals in Research. He knows that we have made significant progress on establishing the centre for three Rs. I am happy to inform hon. Members that the centre has already awarded its first two grants and launched a specific three Rs funding scheme, with a budget of 500,000 in 2005. The first applications have been received and are currently being peer reviewed. The board has also held a stakeholder meeting with a wide range of participants, including the RSPCA and the Dr. Hadwen Trust for Humane Research. That is an important development and the Department of Trade and Industry is the lead organisation on that.
	The use of dogs was mentioned. The 1986 Act requires that regulated procedures use animals with the lowest neurophysiological sensitivity necessary to produce satisfactory results. Primates could therefore never be used merely as a convenient alternative to the dog. There has to be a clear scientific justification for the use of primates in every case. Second species use is necessary for some types of agent to be sure of their effect on man. However, I repeat that we examine every request for the use of primates seriously.
	My hon. Friend mentioned xenotransplantation. No solid organ xenotransplantation is currently licensed in the UK, so in the context of what my hon. Friend has said that is not an issue for us now. Who knows? There may be an application in the future; but there are none at the moment, and I am aware of none in the near future.
	Animal experimentation is an area in which Government policy must recognise a wide range of opinions when making the best possible provision to meet the public interestand the public interest is often in two minds, as it were. Part of that involves being as open and transparent as possible about why animals are being used. I understand that we have made progress on licence summaries, and that details are now available on websites to help people understand the ways in which licences are being used. That is a huge step forward since I took up my responsibilities.
	Because of public concerns, this is a highly regulated sector and will continue to be so. We are open at all times to suggestions about opportunities to reduce the use of animals in experimentation, not just primates but other animals. We do believe, however, that there are potential benefits to us and the environment that can currently be achieved only through the strictly controlled used of animals. As I said earlier, we should also bear in mind the need for all animal use to be fully justified, and for animal suffering to be minimised and carefully weighed against the potential benefits.
	I am grateful to my hon. Friend for giving me the opportunity to respond to a debate that can have no closure, because it is an ongoing discussion. We should use the opportunities provided in the House to increase awareness of these important issues.
	Question put and agreed to.
	Adjourned accordingly at six minutes past Nine o'clock.